Fortun V Arroyo

10/29/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 668
G.R. No. 190293. March 20, 2012.*
PHILIP SIGFRID A. FORTUN and ALBERT LEE G.

ANGELES, petitioners, vs. GLORIA MACAPAGAL
ARROYO, as CommanderinChief and President of the
Republic of the Philippines, EDUARDO ERMITA,
Executive Secretary, ARMED FORCES OF THE
PHILIPPINES (AFP), or any of their units, PHILIPPINE
NATIONAL POLICE (PNP), or any of their units, JOHN
DOES and JANE DOES acting under their direction and
control, respondents.
G.R. No. 190294. March 20, 2012.*

DIDAGEN P. DILANGALEN, petitioner, vs. EDUARDO R.
ERMITA in his capacity as Executive Secretary,
NORBERTO GONZALES in his capacity as Secretary of
National Defense, RONALDO PUNO in his capacity as
Secretary of Interior and Local Government, respondents.
G.R. No. 190301. March 20, 2012.*

NATIONAL UNION OF PEOPLES’ LAWYERS (NUPL)
SECRETARY GENERAL NERI JAVIER COLMENARES,
BAYAN MUNA REPRESENTATIVE SATUR C. OCAMPO,
GABRIELA WOMEN’S PARTY REPRESENTATIVE LIZA
L. MAZA, ATTY. JULIUS GARCIA MATIBAG, ATTY.
EPHRAIM B. CORTEZ, ATTY. JOBERT ILARDE
PAHILGA, ATTY. VOLTAIRE B. AFRICA, BAGONG
ALYANSANG MAKABAYAN (BAYAN) SECRETARY
GENERAL RENATO M. REYES, JR. and ANTHONY IAN
CRUZ, petitioners, vs. PRESIDENT GLORIA
MACAPAGALARROYO, EXECUTIVE SECRETARY
EDUARDO R. ERMITA, ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL VICTOR S.
IBRADO, PHILIPPINE NATIONAL POLICE DIRECTOR
GENERAL JESUS A. VERZOSA, DE
_______________
* EN BANC.
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VOL. 668, MARCH 20, 2012 505

http://www.central.com.ph/sfsreader/session/00000166c00416aeb2591e9c003600fb002c009e/t/?o=False 1/92
Fortun vs. MacapagalArroyo
PARTMENT OF JUSTICE SECRETARY AGNES VST

DEVANADERA, ARMED FORCES OF THE
PHILIPPINES EASTERN MINDANAO COMMAND
CHIEF LIEUTENANT GENERAL RAYMUNDO B.
FERRER, respondents.
G.R. No. 190302. March 20, 2012.*

JOSEPH NELSON Q. LOYOLA, petitioner, vs. HER
EXCELLENCY PRESIDENT GLORIA MACAPAGAL
ARROYO, ARMED FORCES CHIEF OF STAFF
GENERAL VICTOR IBRADO, PHILIPPINE NATIONAL
POLICE (PNP), DIRECTOR GENERAL JESUS
VERZOSA, EXECUTIVE SECRETARY EDUARDO
ERMITA, respondents.
G.R. No. 190307. March 20, 2012.*

JOVITO R. SALONGA, RAUL C. PANGALANGAN, H.
HARRY L. ROQUE, JR., JOEL R. BUTUYAN, EMILIO
CAPULONG, FLORIN T. HILBAY, ROMEL R. BAGARES,
DEXTER DONNE B. DIZON, ALLAN JONES F.
LARDIZABAL and GILBERT T. ANDRES, suing as
taxpayers and as CONCERNED Filipino citizens,
petitioners, vs. GLORIA MACAPAGALARROYO, in his
(sic) capacity as President of the Republic of the
Philippines, HON. EDUARDO ERMITA, JR., in his
capacity as Executive Secretary, and HON. ROLANDO
ANDAYA in his capacity as Secretary of the Department of
Budget and Management, GENERAL VICTOR IBRADO, in
his capacity as Armed Forces of the Philippines Chief of
Staff, DIRECTOR JESUS VERZOSA, in his capacity as
Chief of the Philippine National Police, respondents.
G.R. No. 190356. March 20, 2012.*

BAILENG S. MANTAWIL, DENGCO SABAN, Engr.
OCTOBER CHIO, AKBAYAN PARTY LIST
REPRESENTATIVES WALDEN F. BELLO and ANA
THERESIA HONTIVEROSBARAQUEL, LORETTA ANN
P. ROSALES, MARVIC M.V.F. LEONEN, THEODORE O.
TE and IBARRA M. GUTIERREZ
506
506 SUPREME COURT REPORTS ANNOTATED

III, petitioners, vs. THE EXECUTIVE SECRETARY, THE

SECRETARY OF NATIONAL DEFENSE, THE
SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, and
THE CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, respondents.
G.R. No. 190380. March 20, 2012.*

CHRISTIAN MONSOD and CARLOS P. MEDINA, JR.,
petitioners, vs. EDUARDO R. ERMITA, in his capacity as
Executive Secretary, respondent.
Constitutional Law; Executive Department; Congress; Martial

Law; Writ of Habeas Corpus; It is evident that under the 1986
Constitution the President and the Congress act in tandem in
exercising the power to proclaim martial law or suspend the
privilege of the writ of habeas corpus. They exercise the power, not
only sequentially, but in a sense jointly.—The pertinent provisions
of Section 18, Article VII of the 1987 Constitution state: Sec. 18.
The President shall be the Commander in Chief of all armed
forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial
law. Within forty eight hours from the proclamation of martial
law or the suspension of the privilege of writ of habeas corpus, the
President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public
safety requires it. The Congress, if not in session, shall, within
twenty four hours following such proclamation or suspension,
convene in accordance with its rules without
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any need of a call. x x x x Although the above vests in the

President the power to proclaim martial law or suspend the
privilege of the writ of habeas corpus, he shares such power with
the Congress. Thus: 1. The President’s proclamation or
suspension is temporary, good for only 60 days; 2. He must,
within 48 hours of the proclamation or suspension, report his
action in person or in writing to Congress; 3. Both houses of
Congress, if not in session must jointly convene within 24 hours of
the proclamation or suspension for the purpose of reviewing its
validity; and 4. The Congress, voting jointly, may revoke or affirm
the President’s proclamation or suspension, allow their limited
effectivity to lapse, or extend the same if Congress deems
warranted. It is evident that under the 1987 Constitution the
President and the Congress act in tandem in exercising the power
to proclaim martial law or suspend the privilege of the writ of
habeas corpus. They exercise the power, not only sequentially, but
in a sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can maintain
the same based on its own evaluation of the situation on the
ground, a power that the President does not have.
Same; Courts; Judicial Review; The Court’s duty is to steer
clear of declaring unconstitutional the acts of the Executive or the
Legislative department, given the assumption that it carefully
studied those acts and found them consistent with the
fundamental law before taking them.—The Court does not resolve
purely academic questions to satisfy scholarly interest, however
intellectually challenging these are. This is especially true, said
the Court in Philippine Association of Colleges and Universities v.
Secretary of Education, where the issues “reach constitutional
dimensions, for then there comes into play regard for the court’s
duty to avoid decision of constitutional issues unless avoidance
becomes evasion.” The Court’s duty is to steer clear of declaring
unconstitutional the acts of the Executive or the Legislative
department, given the assumption that it carefully studied those
acts and found them consistent with the fundamental law before
taking them. “To doubt is to sustain.”
Same; Same; Executive Department; Congress; Martial Law;
Writ of Habeas Corpus; If the Congress procrastinates or
altogether fails to fulfill its duty respecting the proclamation or
suspension within the short time expected of it, then the Court can
step in, hear the petitions challenging the President’s action, and
ascertain if it has
508
a factual basis.—If the Congress procrastinates or altogether fails

to fulfill its duty respecting the proclamation or suspension within
the short time expected of it, then the Court can step in, hear the
petitions challenging the President’s action, and ascertain if it has
a factual basis. If the Court finds none, then it can annul the
proclamation or the suspension. But what if the 30 days given it
by the Constitution proves inadequate? Justice Carpio himself
offers the answer in his dissent: that 30day period does not
operate to divest this Court of its jurisdiction over the case. The
settled rule is that jurisdiction once acquired is not lost until the
case has been terminated.
CARPIO, J., Dissenting Opinion:
Remedial Law; Civil Procedure; Locus Standi; Words and
Phrases; View that “legal standing” or locus standi has been
defined as a personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged.—“Legal standing”
or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is
being challenged. In case of a suit questioning the sufficiency of
the factual basis of the proclamation of martial law or suspension
of the writ, such as here, Section 18, Article VII of the
Constitution expressly provides: The Supreme Court may review,
in an appropriate proceeding filed by a ny citizen, the sufficiency
of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus or the
extension thereof, and must promulgate its decision thereon
within thirty days from its filing. (Emphasis supplied) It is clear
that the Constitution explicitly clothes “a ny citizen” with the
legal standing to challenge the constitutionality of the declaration
of martial law or suspension of the writ. The Constitution does
not make any distinction as to who can bring such an action. As
discussed in the deliberations of the Constitutional Commission,
the “citizen” who can challenge the declaration of martial law or
suspension of the writ need not even be a taxpayer. This was
deliberately designed to arrest, without further delay, the grave
effects of an illegal declaration of martial law or suspension of the
writ, and to provide immediate relief to those aggrieved by the
same. Accordingly, petitioners, being Filipino citizens, possess
legal standing to
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VOL. 668, MARCH 20, 2012 509

file the present petitions assailing the sufficiency of the factual

basis of Proclamation No. 1959.
Constitutional Law; Judicial Review; Courts; Moot and
Academic; View that courts may exercise their review power only
when there is an actual case or controversy, which involves a
conflict of legal claims susceptible of judicial resolution;
Corollarily, courts generally decline jurisdiction over a moot and
academic case or outrightly dismiss it on the ground of mootness.
—As a rule, courts may exercise their review power only when
there is an actual case or controversy, which involves a conflict of
legal claims susceptible of judicial resolution. Such a case must be
“definite and concrete, touching the legal relations of parties
having conflicting legal interests;” a real, as opposed to an
imagined, controversy calling for a specific relief. Corollarily,
courts generally decline jurisdiction over a moot and academic
case or outrightly dismiss it on the ground of mootness. A moot
and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that assuming
jurisdiction over the same, and eventually deciding it, would be of
no practical use or value. In David v. Arroyo, 489 SCRA 160
(2006), this Court held that the “moot and academic” principle is
not a magical formula that automatically dissuades courts in
resolving a case. Courts are not prevented from deciding cases,
otherwise moot and academic, if (1) there is a grave violation of
the Constitution; (2) the situation is of exceptional character and
of paramount public interest; (3) the constitutional issue raised
requires formulation of controlling principles to guide the bench,
the bar, and the public; and (4) the case is capable of repetition
yet evading review.
Same; Criminal Law; Rebellion; View that the term “rebellion”
in Section 18, Article VII of the 1987 Constitution must be
understood as having the same meaning as the crime of “rebellion”
that is defined in Article 134 of the Revised Penal Code, as
amended.—The term “rebellion” in Section 18, Article VII of the
1987 Constitution must be understood as having the same
meaning as the crime of “rebellion” that is defined in Article 134
of the Revised Penal Code, as amended. First, this is the clear
import of the last two paragraphs of Section 18, Article VII of the
Constitution, which explicitly state: The suspension of the
privilege of the writ of habeas corpus shall apply only to persons
judicially charged for rebellion or offenses inherent in, or
directly connected with, invasion. During the
510
suspension of the privilege of the writ of habeas corpus, any

person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
(Emphasis supplied) For a person to be judicially charged for
rebellion, there must necessarily be a statute defining rebellion.
There is no statute defining rebellion other than the Revised
Penal Code. Hence, “one can be ‘judicially charged’ with rebellion
only if one is suspected of having committed acts defined as
rebellion in Article 134 of the Revised Penal Code.” Second, the
Revised Penal Code definition of rebellion is the only legal
definition of rebellion known and understood by the Filipino
people when they ratified the 1987 Constitution. x x x Third, one
of the Whereas clauses of Proclamation No. 1959 expressly cites
the Revised Penal Code definition of rebellion, belying the
government’s claim that the Revised Penal Code definition of
rebellion merely guided the President in issuing Proclamation No.
1959.
Same; Same; Same; CommanderinChief Powers; View that
in exercising the CommanderinChief powers under the
Constitution, every President must insure the existence of the
elements of the crime of rebellion.—In exercising the Commander
inChief powers under the Constitution, every President must
insure the existence of the elements of the crime of rebellion,
which are: (1) there is a (a) public uprising and (b) taking arms
against the Government; and (2) the purpose of the uprising or
movement is either (a) to remove from the allegiance to the
Government or its laws: (1) the territory of the Philippines or any
part thereof; or (2) any body of land, naval, or other armed forces;
or (b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives.
Same; Same; View that probable cause is the same amount of
proof required for the filing of a criminal information by the
prosecutor and for the issuance of an arrest warrant by a judge.—I
am of the view that probable cause of the existence of either
invasion or rebellion suffices and satisfies the standard of proof
for a valid declaration of martial law and suspension of the writ.
Probable cause is the same amount of proof required for the filing
of a criminal information by the prosecutor and for the issuance of
an arrest warrant by a judge. Probable cause has been defined as
a “set of facts and circumstances as would lead a reasonably
discreet and prudent man to believe that the offense charged in
the Information or any offense
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VOL. 668, MARCH 20, 2012 511
included therein has been committed by the person sought to be

arrested.”
Same; Martial Law; Writ of Habeas Corpus; View that the
constitutional guarantees under the Bill of Rights remain fully
operative and continue to accord the people its mantle of protection
during a state of martial law.—The Constitution now expressly
declares, “A state of martial law does not suspend the operation of
the Constitution.” Neither does a state of martial law supplant
the functioning of the civil courts or legislative assemblies. Nor
does it authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function,
or automatically suspend the writ. There is therefore no dispute
that the constitutional guarantees under the Bill of Rights remain
fully operative and continue to accord the people its mantle of
protection during a state of martial law. In case the writ is also
suspended, the suspension applies only to those judicially charged
for rebellion or offenses directly connected with invasion.
Considering the nonsuspension of the operation of the
Constitution during a state of martial law, a declaration of
martial law does not authorize warrantless arrests, searches and
seizures, in derogation of Section 2, Article III of the Constitution.
Same; Same; Same; View that even if Congress has not acted
upon the President’s declaration or suspension, the Court may
review the declaration or suspension in an appropriate proceeding
filed by any citizen.—It is clear, therefore, that the President’s
power to declare martial law or suspend the writ is independent,
separate, and distinct from any constitutionally mandated act to
be performed by either the Legislature or the Judiciary. It is
neither joint nor sequential with Congress’ power to revoke the
declaration or suspension or to extend it upon the initiative of the
President. Accordingly, even if Congress has not acted upon the
President’s declaration or suspension, the Court may review the
declaration or suspension in an appropriate proceeding filed by
any citizen. Otherwise stated, Congress’ inaction on the
declaration or suspension is not determinative of the Court’s
exercise of its review power under Section 18, Article VII of the
Constitution.
Same; Same; Same; Executive Department; View that the
President has the sole and exclusive power to declare martial law
or suspend the writ subject to review separately by Congress and
the Supreme Court.—The President has the sole and exclusive
power to
512
declare martial law or suspend the writ. This power of the

President is subject to review separately by Congress and the
Supreme Court. Justice Mendoza stresses, “Thus, Congress and
this Court have separate spheres of competence. They do not act
‘jointly and sequentially’ but independently of each other.” Father
Bernas points out, “Since the powers of Congress and the Court
are independent of each other, there is nothing to prevent
Congress and the Court from simultaneously exercising their
separate powers.”
Same; Same; Same; Same; View that whatever the Court’s
decision will be on the sufficiency of the factual basis of the
President’s declaration or suspension does not preclude those
aggrieved by such illegal acts from pursuing any course of legal
action available to them.—Indisputably, unlawful acts may be
committed during martial law or suspension of the writ, not only
by the rebels, but also by government forces who are duty bound
to enforce the declaration or suspension and immediately put an
end to the root cause of the emergency. Various acts carried out
by government forces during martial law or suspension of the writ
in the guise of protecting public safety may in reality amount to
serious abuses of power and authority. Whatever the Court’s
decision will be on the sufficiency of the factual basis of the
President’s declaration or suspension does not preclude those
aggrieved by such illegal acts from pursuing any course of legal
action available to them. Therefore, the determination by this
Court of the sufficiency of the factual basis of the declaration or
suspension is not essential to the resolution of issues concerning
the validity of related acts that government forces may have
committed during the emergency.
Same; Same; Same; View that the Constitution no longer
allows imminent danger of rebellion or invasion as a ground for
the declaration or suspension, which the 1935 and 1973
Constitutions expressly permitted.—Consistent with the framers’
intent to reformulate the CommanderinChief powers of the
President, the 1987 Constitution requires the concurrence of two
conditions in declaring martial law or suspending the writ,
namely, (1) an actual invasion or rebellion, and (2) public safety
requires the exercise of such power. The Constitution no longer
allows imminent danger of rebellion or invasion as a ground for

Constitutions expressly permitted.
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Same; Same; Same; View that only in case of actual invasion

or rebellion, when public safety requires it, may the President
declare martial law or suspend the writ.—Only in case of actual
invasion or rebellion, when public safety requires it, may the
President declare martial law or suspend the writ. In declaring
martial law and suspending the writ in Maguindanao in the
absence of an actual rebellion, President Arroyo indisputably
violated the explicit provisions of Section 18, Article VII of the
Constitution.
Same; Same; Same; Proclamation No. 1959; View that
Proclamation No. 1959 was anchored on a nonexistent rebellion;
It cannot be justified on the basis of a threatened, imminent, or
looming rebellion, which ground was intentionally deleted by the
framers of the 1987 Constitution.—In sum, Proclamation No. 1959
was anchored on a nonexistent rebellion. Based on the events
before, during and after the Maguindanao massacre, there was
obviously no rebellion justifying the declaration of martial law
and suspension of the writ. The discovery of the Ampatuans’
private army and massive weaponry does not establish an armed
public uprising aimed at overthrowing the government. Neither
do the closure of government offices and the reluctance of the local
government officials and employees to report for work indicate a
rebellion. The Constitution is clear. Only in case of actual
invasion or rebellion, when public safety requires it, can a state of
martial law be declared or the privilege of the writ of habeas
corpus be suspended. Proclamation No. 1959 cannot be justified
on the basis of a threatened, imminent, or looming rebellion,
which ground was intentionally deleted by the framers of the
1987 Constitution. Considering the nonexistence of an actual
rebellion in Maguindanao, Proclamation No. 1959 is
unconstitutional for lack of factual basis as required under
Section 18, Article VII of the Constitution for the declaration of
martial law and suspension of the privilege of the writ of habeas
corpus.
VELASCO, JR., J., Dissenting Opinion:
Constitutional Law; Martial Law; Writ of Habeas Corpus;
View that despite the lifting of the martial law and restoration of
the privilege of the writ, the Court must take the bull by the horn to
guide, explain and elucidate to the executive branch, the legislative

branch, the bar, and more importantly the public on the
parameters of a declaration of martial law.—It is my view that,
despite the lifting of the martial law and restoration of the
privilege of the writ, the Court
514
must take the bull by the horn to guide, explain and elucidate to
the executive branch, the legislative branch, the bar, and more
importantly the public on the parameters of a declaration of
martial law. Indeed, it is a wellsettled rule that this Court may
only adjudicate actual and current controversies. This is because
the Court is “not empowered to decide moot questions or abstract
propositions, or to declare principles or rules of law which cannot
affect the result as to the thing in issue in the case before it.”
Nonetheless, this “moot and academic” rule admits of exceptions.
Same; Same; Same; View that there is neither any allegation
nor proof that President Arroyo acted in bad faith when she
declared martial law and suspended the writ of habeas corpus in
Maguindanao.—In the case at bar, there is neither any allegation
nor proof that President Arroyo acted in bad faith when she
declared martial law and suspended the writ of habeas corpus in
Maguindanao. There was also no showing that there was a
deliberate or intentional attempt on the part of President Arroyo
to break or dishonor the Constitution by issuing the assailed
proclamation. On the contrary, what is extant from the records is
that President Arroyo made such declaration and suspension on
the basis of intelligence reports that lawless elements have taken
up arms and committed public uprising against the government
and the people of Maguindanao for the purpose of depriving the
Chief Executive of her powers and prerogatives to enforce the
laws of the land and to maintain public order and safety, to the
great damage, prejudice and detriment of the people in
Maguindanao and the nation as a whole.
Same; Same; Same; Executive Department; View that the
President has the discretion to make a declaration of martial law
or suspension of the writ of habeas corpus based on information or
facts available or gathered by the President’s office.—Significantly,
the President has the discretion to make a declaration of martial
law or suspension of the writ of habeas corpus based on
information or facts available or gathered by the President’s
office. It would be preposterous to impose upon the President to be
physically present at the place where a threat to public safety is

alleged to exist as a condition to make such declaration or
suspension.
Same; Same; Same; View that it is one thing to declare a
decree issued by the President as unconstitutional, and it is
another to pronounce that she indisputably violated the
Constitution.—To a certain
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VOL. 668, MARCH 20, 2012 515
extent, I conform to Justice Carpio’s dissent as to the

unconstitutionality of Proclamation No. 1959. To my mind,
however, it is one thing to declare a decree issued by the
President as unconstitutional, and it is another to pronounce that
she indisputably violated the Constitution. Notably, the power
to issue the subject decree is expressly granted the President.
There is also compliance with the report required after the
issuance of said decree. However, the issuance of the subject
decree may not be sustained after due consideration of the
circumstances which may or may not support such decree.
PEREZ, J., Separate Opinion:
Constitutional Law; Martial Law; Writ of Habeas Corpus;
View that the dismissal of the petition was more than by reason of
their mootness but because the Court action was already overdue.
—I concur in the resulting dismissal of these petitions, more than
by reason of their mootness but because I find our action overdue,
it being my wellthoughtout position that the constitutional
authority of the Supreme Court to review the sufficiency of the
factual basis of Proclamation No. 1959 has expired and is no
more. Proclamation No. 1959 declaring martial law and
suspending the privilege of the writ of habeas corpus in the
Province of Maguindanao was issued by then President Gloria
Macapagal Arroyo on 4 December 2009. In compliance with the
mandate of Section 18, Article VII of the present Constitution, she
submitted her Report to Congress on 6 December 2009 or “within
fortyeight hours from the proclamation.”
Same; Same; Same; CommanderinChief Power; Judicial
Review; View that each and every exercise by the President of his
commanderinchiefship must, if review by the Supreme Court be
asked and called for, be examined under the current events and the
present affairs that determine the presence of the necessity of such
exercise.—Respectfully, I submit that each and every exercise by
the President of his commanderinchiefship must, if review by

this Court be asked and called for, be examined under the current
events and the present affairs that determine the presence of the
necessity of such exercise. All the decisions of the actors covered
by Section 18 of Article VII must be done within the tight and
narrow time frames in the provision. These framed periods, I
submit, emphasize the imperative for currency of the decision
that each must make, as indeed,
516
the presidential proclamation, aside from having been subjected

to constitutional checks, has been given limited life.
Same; Same; Same; Judicial Review; View that the Supreme
Court cannot now define for the future the “sufficiency of the
factual basis” of the possibly coming proclamations of martial law.
—I respectfully submit that the Court cannot now define for the
future the “sufficiency of the factual basis” of the possibly coming
proclamations of martial law. I cannot see how such a pre
determination can prevent an unconstitutional imposition of
martial law better than the requirement, already
constitutionalized, that the President must within fortyeight
hours, submit a report in person or in writing to Congress which
can, by a majority of all its members revoke, the imposition.
PETITIONS to challenge the constitutionality of

Proclamation No. 1959.
The facts are stated in the opinion of the Court.
Philip Sigfrid A. Fortun and John Michael S. Galauran
for petitioners in G.R. No. 190293.
Teddy Esteban F. Rigoroso and Roderick R. Rabino for
petitioner in G.R. No. 190294.
Julius Garcia Matibag, Jobert Ilarde Pahilga, Ephraim
B. Cortez and Voltaire B. Africa for petitioners in G.R. No.
190301.
Nelson H. Loyola for petitioner in G.R. No. 190302.
H. Harry L. Roque, Jr. and Joel Ruiz Butuyan for
petitioners in G.R. No. 190307.
Carlos P. Medina, Jr. for petitioners in G.R. No.
190380.
Marvic M.V.F. Leonen for petitioners in G.R. No.
190356.
R.A.V. Saguisag lead counsel for N. Loyola.
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VOL. 668, MARCH 20, 2012 517

ABAD, J.:
These cases concern the constitutionality of a
presidential proclamation of martial law and suspension of
the privilege of habeas corpus in 2009 in a province in
Mindanao which were withdrawn after just eight days.
The Fa cts a nd the Ca se
The essential background facts are not in dispute. On

November 23, 2009 heavily armed men, believed led by the
ruling Ampatuan family, gunned down and buried under
shoveled dirt 57 innocent civilians on a highway in
Maguindanao. In response to this carnage, on November 24
President Arroyo issued Presidential Proclamation 1946,
declaring a state of emergency in Maguindanao, Sultan
Kudarat, and Cotabato City to prevent and suppress
similar lawless violence in Central Mindanao.
Believing that she needed greater authority to put order
in Maguindanao and secure it from large groups of persons
that have taken up arms against the constituted
authorities in the province, on December 4, 2009 President
Arroyo issued Presidential Proclamation 1959 declaring
martial law and suspending the privilege of the writ of
habeas corpus in that province except for identified areas of
the Moro Islamic Liberation Front.
Two days later or on December 6, 2009 President Arroyo
submitted her report to Congress in accordance with
Section 18, Article VII of the 1987 Constitution which
required her, within 48 hours from the proclamation of
martial law or the suspension of the privilege of the writ of
habeas corpus, to submit to that body a report in person or
in writing of her action.
In her report, President Arroyo said that she acted
based on her finding that lawless men have taken up arms
in Maguindanao and risen against the government. The
President described the scope of the uprising, the nature,
quantity,
517
VOL. 668, MARCH 20, 2012 517

and quality of the rebels’ weaponry, the movement of their

heavily armed units in strategic positions, the closure of
the Maguindanao Provincial Capitol, Ampatuan Municipal
Hall, Datu Unsay Municipal Hall, and 14 other municipal
halls, and the use of armored vehicles, tanks, and patrol
cars with unauthorized “PNP/Police” markings.
On December 9, 2009 Congress, in joint session,
convened pursuant to Section 18, Article VII of the 1987
Constitution to review the validity of the President’s action.
But, two days later or on December 12 before Congress
could act, the President issued Presidential Proclamation
1963, lifting martial law and restoring the privilege of the
writ of habeas corpus in Maguindanao.
Petitioners Philip Sigfrid A. Fortun and the other
petitioners in G.R. 190293, 190294, 190301,190302,
190307, 190356, and 190380 brought the present actions to
challenge the constitutionality of President Arroyo’s
Proclamation 1959 affecting Maguindanao. But, given the
prompt lifting of that proclamation before Congress could
review it and before any serious question affecting the
rights and liberties of Maguindanao’s inhabitants could
arise, the Court deems any review of its constitutionality
the equivalent of beating a dead horse.
Prudence and respect for the coequal departments of
the government dictate that the Court should be cautious
in entertaining actions that assail the constitutionality of
the acts of the Executive or the Legislative department.
The issue of constitutionality, said the Court in Biraogo v.
Philippine Truth Commission of 2010,1 must be the very
issue of the case, that the resolution of such issue is
unavoidable.
The issue of the constitutionality of Proclamation 1959
is not unavoidable for two reasons:
_______________
1 G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 147
148.
519
VOL. 668, MARCH 20, 2012 519

One. President Arroyo withdrew her proclamation of

martial law and suspension of the privilege of the writ of
habeas corpus before the joint houses of Congress could
fulfill their automatic duty to review and validate or
invalidate the same. The pertinent provisions of Section 18,

Article VII of the 1987 Constitution state:
“Sec. 18. The President shall be the Commander in Chief of

all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof
under martial law. Within forty eight hours from the
proclamation of martial law or the suspension of the privilege of
writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall, within twenty four hours
following such proclamation or suspension, convene in accordance
with its rules without any need of a call.
x x x x”
Although the above vests in the President the power to

proclaim martial law or suspend the privilege of the writ of
habeas corpus, he shares such power with the Congress.
Thus:
1. The President’s proclamation or suspension is temporary,

good for only 60 days;
2. He must, within 48 hours of the proclamation or
suspension, report his action in person or in writing to Congress;
520

3. Both houses of Congress, if not in session must jointly

convene within 24 hours of the proclamation or suspension for the
purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke or affirm the
President’s proclamation or suspension, allow their limited
effectivity to lapse, or extend the same if Congress deems
warranted.
It is evident that under the 1987 Constitution the

President and the Congress act in tandem in exercising the
power to proclaim martial law or suspend the privilege of
the writ of habeas corpus. They exercise the power, not only
sequentially, but in a sense jointly since, after the
President has initiated the proclamation or the suspension,
only the Congress can maintain the same based on its own
evaluation of the situation on the ground, a power that the
President does not have.
Consequently, although the Constitution reserves to the
Supreme Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a proper
suit, it is implicit that the Court must allow Congress to
exercise its own review powers, which is automatic rather
than initiated. Only when Congress defaults in its express
duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The
constitutional validity of the President’s proclamation of
martial law or suspension of the writ of habeas corpus is
first a political question in the hands of Congress before it
becomes a justiciable one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959
before the joint houses of Congress, which had in fact
convened, could act on the same. Consequently, the
petitions in these cases have become moot and the Court
has nothing to review. The lifting of martial law and
restoration of the privilege of the writ of habeas corpus in
Maguindanao was a supervening event that obliterated any
justiciable controversy.2
_______________
2 See Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA
308, 319.
521
VOL. 668, MARCH 20, 2012 521

Two. Since President Arroyo withdrew her

proclamation of martial law and suspension of the privilege
of the writ of habeas corpus in just eight days, they have
not been meaningfully implemented. The military did not
take over the operation and control of local government
units in Maguindanao. The President did not issue any law
or decree affecting Maguindanao that should ordinarily be
enacted by Congress. No indiscriminate mass arrest had
been reported. Those who were arrested during the period

were either released or promptly charged in court. Indeed,
no petition for habeas corpus had been filed with the Court
respecting arrests made in those eight days. The point is
that the President intended by her action to address an
uprising in a relatively small and sparsely populated
province. In her judgment, the rebellion was localized and
swiftly disintegrated in the face of a determined and amply
armed government presence.
In Lansang v. Garcia,3 the Court received evidence in
executive session to determine if President Marcos’
suspension of the privilege of the writ of habeas corpus in
1971 had sufficient factual basis. In Aquino, Jr. v. Enrile,4
while the Court took judicial notice of the factual bases for
President Marcos’ proclamation of martial law in 1972, it
still held hearings on the petitions for habeas corpus to
determine the constitutionality of the arrest and detention
of the petitioners. Here, however, the Court has not
bothered to examine the evidence upon which President
Arroyo acted in issuing Proclamation 1959, precisely
because it felt no need to, the proclamation having been
withdrawn within a few days of its issuance.
Justice Antonio T. Carpio points out in his dissenting
opinion the finding of the Regional Trial Court (RTC) of
Quezon City that no probable cause exist that the accused
before it committed rebellion in Maguindanao since the
prosecution failed to establish the elements of the crime.
But the Court
_______________
3 149 Phil. 547; 42 SCRA 448 (1971).
4 158A Phil. 1; 59 SCRA 183 (1974).
522

cannot use such finding as basis for striking down the

President’s proclamation and suspension. For, firstly, the
Court did not delegate and could not delegate to the RTC of
Quezon City its power to determine the factual basis for
the presidential proclamation and suspension. Secondly,
there is no showing that the RTC of Quezon City passed
upon the same evidence that the President, as
CommanderinChief of the Armed Forces, had in her
possession when she issued the proclamation and

suspension.
The Court does not resolve purely academic questions to
satisfy scholarly interest, however intellectually
5
challenging these are. This is especially true, said the
Court in Philippine Association of Colleges and Universities
v. Secretary of Education,6 where the issues “reach
constitutional dimensions, for then there comes into play
regard for the court’s duty to avoid decision of
constitutional issues unless avoidance becomes evasion.”
The Court’s duty is to steer clear of declaring
unconstitutional the acts of the Executive or the
Legislative department, given the assumption that it
carefully studied those acts and found them consistent with
the fundamental law before taking them. “To doubt is to
sustain.”7
Notably, under Section 18, Article VII of the 1987
Constitution, the Court has only 30 days from the filing of
an appropriate proceeding to review the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus.
Thus—
“The Supreme Court may review, in an appropriate proceeding

filed by any citizen, the sufficiency of the factual basis of the
procla
_______________
5 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426; 292 SCRA 402, 413
(1998).
6 97 Phil. 806, 811 (1955), citing Rice v. Sioux City, U.S. Sup. Ct. Adv. Rep.,
May 23, 1955, Law Ed., Vol. 99, p. 511.
7 Board of Optometry v. Colet, 328 Phil. 1187, 1207; 260 SCRA 88, 105 (1996),
citing Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140.
523
VOL. 668, MARCH 20, 2012 523

mation of martial law or the suspension of the privilege of the

writ of habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its
filing.” (Emphasis supplied)
More than two years have passed since petitioners filed

the present actions to annul Proclamation 1959. When the
Court did not decide it then, it actually opted for a default
as was its duty, the question having become moot and

academic.
Justice Carpio of course points out that should the Court
regard the powers of the President and Congress respecting
the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus as sequential or joint,
it would be impossible for the Court to exercise its power of
review within the 30 days given it.
But those 30 days, fixed by the Constitution, should be
enough for the Court to fulfill its duty without preempting
congressional action. Section 18, Article VII, requires the
President to report his actions to Congress, in person or in
writing, within 48 hours of such proclamation or
suspension. In turn, the Congress is required to convene
without need of a call within 24 hours following the
President’s proclamation or suspension. Clearly, the
Constitution calls for quick action on the part of the
Congress. Whatever form that action takes, therefore,
should give the Court sufficient time to fulfill its own
mandate to review the factual basis of the proclamation or
suspension within 30 days of its issuance.
If the Congress procrastinates or altogether fails to
fulfill its duty respecting the proclamation or suspension
within the short time expected of it, then the Court can
step in, hear the petitions challenging the President’s
action, and ascertain if it has a factual basis. If the Court
finds none, then it can annul the proclamation or the
suspension. But what if the 30 days given it by the
Constitution proves inadequate? Justice Carpio himself
offers the answer in his dissent: that 30day period does not
operate to divest this Court of its jurisdiction
524

over the case. The settled rule is that jurisdiction once

acquired is not lost until the case has been terminated.
The problem in this case is that the President aborted
the proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in Maguindanao in
just eight days. In a real sense, the proclamation and the
suspension never took off. The Congress itself adjourned
without touching the matter, it having become moot and
academic.
Of course, the Court has in exceptional cases passed
upon issues that ordinarily would have been regarded as
moot. But the present cases do not present sufficient basis

for the exercise of the power of judicial review. The
proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in this case, unlike
similar Presidential acts in the late 60s and early 70s,
appear more like saberrattling than an actual deployment
and arbitrary use of political power.
WHEREFORE, the Court DISMISSES the consolidated
petitions on the ground that the same have become moot
and academic.
SO ORDERED.
LeonardoDe Castro, Brion, Peralta, Bersamin,

Villarama, Jr. and Mendoza, JJ., concur.
Corona (C.J.), I join the dissent of Mr. Justice Velasco.
Carpio, J., See Dissenting Opinion.
Velasco, Jr., J., Please see Dissenting Opinion.
Del Castillo, J., On Leave.
Perez, J., Please see separate opinion.
Sereno, J., I join the dissent of J. Carpio.
Reyes, J., I join the dissent of J. A.T. Carpio.
PerlasBernabe, J., I join the dissent of J. Carpio.
525
VOL. 668, MARCH 20, 2012 525

DISSENTING OPINION
CARPIO, J.:
I dissent.
The Ca ses
These are consolidated petitions for the writs of

certiorari and prohibition challenging the constitutionality
of Presidential Proclamation No. 1959, which declared a
state of martial law and suspended the privilege of the writ
of habeas corpus in the Province of Maguindanao, except
for identified areas of the Moro Islamic Liberation Front.
The Antecedents
In the morning of 23 November 2009, fiftyseven (57)

innocent civilians met their tragic and untimely death in a
gruesome massacre unequaled in recent history,1
considered to be
_______________
1 Presidential Adviser for Mindanao Jesus Dureza’s statement reported
in Philippine Daily Inquirer on 23 November 2009
(http://newsinfo.inquirer.net/breakingnews/nation/view/20091123
237934/Wifeofgubernatorialbet35killedinMaguindanao [accessed on 4
November 2011], Wife of gubernatorial bet, 35 killed in Maguindanao
Palace adviser calls for state of emergency) and in Philippine Star on 24
November 2009 (http://www.philstar.com/
article.aspx?articleid=526314 [accessed on 4 November 2011];
Maguindanaomassacre).
The mass murder of the journalists was tagged “as the darkest point of
democracy and free press in this recent time.” (Statement of NUJP Cebu
Chapter President Rico Lucena reported in philstar.com with title
Maguindanao death toll now 46: Emergency rule in two provinces
(http://www.philstar.com/article.aspx?articleid=526616 [accessed on 4
November 2011]).
The massacre was considered “one of the deadliest single events for the
press in memory" and the Philippines the world’s worst place to be a
journalist, according to international press freedom watchdog Committee
to Protect Journalists (CPJ). (http://www.
526

the Philippines’ worst case of electionrelated violence.

Brutally killed were female family members of then Buluan
Vice Mayor Esmael “Toto” Mangudadatu (Mangudadatu),
including his wife and sisters, and members of the press
who were part of a convoy on the way to Shariff Aguak in
Maguindanao. Mangudadatu’s wife was bringing with her
Mangudadatu’s certificate of candidacy for Governor of
Maguindanao for filing with the Provincial Office of the
Commission on Elections in Shariff Aguak. Five of the
victims were not part of the convoy but happened to be
traveling on the same highway.2
_______________
gmanews.tv/story/177821/theampatuanmassacreamapandtimeline
[accessed on 4 November 2011])
2 Fiftyfive of the casualties were identified as follows:
1. Bai Genelyn T. Mangudadatu – Wife of Mangudadatu
2. Bai Eden Mangudadatu – Sister/Vice Mayor, Mangudadatu,
Maguindanao
3. Pinky Balaiman – Cousin of Mangudadatu
4. Mamotavia Mangudadatu – Aunt
5. Bai Farida Mangudadatu – Youngest sister

6. Rowena Ante Mangudadatu – Relative
7. Faridah Sabdula – Sister
8. Soraida Vernan – Cousin
9. Raida Sapalon Abdul – Cousin
10. Rahima Puto Palawan – Relative
11. Lailan “Ella” Balayman – Relative
12. Walida Ali Kalim – Relative
13. Atty. Concepcion Brizuela – Lawyer
14. Atty. Cynthia Oquendo Ogano – Lawyer
15. Cataleno Oquendo – Father of Atty. Cynthia Oquendo
16. Marife Montano – Saksi News, Gensan
17. Alejandro Bong Reblando – Manila Bulletin, Gensan
18. Mc Delbert “Mac Mac” Areola – UNTV Gensan
19. Rey Marisco – Periodico Ini, Koronadal City
20. Bienvenido Jun Lagarta – Prontierra News, Koronadal City
21. Napoleon Salaysay – Mindanao Gazette
22. Eugene Depillano – UNTV Gen San
23. Rosell Morales – News Focus
24. Arturo Betia – Periodico Ini, Gen San
528

In its Consolidated Comment dated 14 December 2009,

the Office of the Solicitor General (OSG), representing
public respondents, narrated the harrowing events which
unfolded on that fateful day of 23 November 2009, to wit:
xxxx
3. Vice Mayor Mangudadatu confirmed having received reports
that his political rivals (Ampatuans) were planning to kill him
upon
_______________
25. Noel Decena – Periodico Ini
26. John Caniba – Periodico Ini
27. Junpee Gatchalian – DXGO, Davao City
28. Victor Nunez – UNTV Gen San
29. Andres Teodoro –Central Mindanao Inquirer
30. Romeo Capelo – Midland Review, Tacurong City
31. Joy Duhay – Gold Star Daily
32. Ronnie Perante – Gold Star Daily, Koronadal City
33. Benjie Adolfo – Gold Star Daily, Koronadal City
34. Ian Subang – Socsargen Today, Gen San
35. Joel Parcon – Prontiera News, Koronadal City
36. Robello Bataluna – Gold Star Daily, Koronadal City

37. Lindo Lipugan – Mindanao Daily Gazette, Davao City
38. Ernesto Maravilla – Bombo Radyo, Koronadal City
39. Henry Araneta – Radio DZRH, Gen San
40. Fernando Razon – Periodico Ini, Gen San
41. Hannibal Cachuela – Punto News, Koronadal City
42. Lea Dalmacio – Socsargen News, Gensan
43. Marites Cablitas – News Focus, Gensan
44. Gina Dela Cruz – Saksi News, Gensan
45. Anthony Ridao – Government employee
46. Mariam Calimbol – Civilian
47. Norton “Sidic” Edza – Driver
48. Jephon C. Cadagdagon – Civilian
49. Abdillah Ayada – Driver
50. Joselito Evardo – Civilian
51. Cecille Lechonsito – Civilian
52. Wilhelm Palabrica – Government Employee
53. Mercy Palabrica – Government Employee
54. Daryll Vincent Delos Reyes – Government Employee
55. Eduardo “Nonie” Lechonsito – Government Employee
528

his filing of a certificate of candidacy (COC) for the gubernatorial

seat in Maguindanao. Believing that the presence of women and
media personalities would deter any violent assault, he asked his
wife and female relatives to file his COC and invited several
media reporters to cover the event.
4. At around 10 a.m., the convoy stopped at a designated PNP
checkpoint along the highway of Ampatuan, Maguindanao
manned by the Maguindanao 1508th Provincial Mobile Group,
particularly, Eshmail Canapia and Takpan Dilon. While at a stop,
they were approached by about one hundred (100) armed men.
The armed men pointed their weapons at the members of the
1508th Provincial Mobile Group manning the check point, and
threatened them to refrain from interfering. The members of the
convoy were then ordered to alight from their vehicles and to lie
face down on the ground, as the armed men forcibly took their
personal belongings. Subsequently, all members of the convoy
were ordered to board their vehicles. They were eventually
brought by the armed men to the hills in Barangay Masalay,
Ampatuan, about 2.5 kilometers from the checkpoint.
5. At about the same time, Vice Mayor Mangudadatu received a
call from his wife Genelyn who, in a trembling voice, told him that
a group of more or less 100 armed men stopped their convoy, and
that Datu Unsay Mayor Andal Ampatuan, Jr. was walking

towards her, and was about to slap her face. After those last
words were uttered, the phone line went dead and her cellphone
could not be contacted any longer. Alarmed that his wife and
relatives, as well as the media personalities were in grave danger,
Vice Mayor Mangudadatu immediately reported the incident to
the Armed Forces of the Philippines.
6. In the afternoon of the same day, soldiers—aboard two army
trucks led by Lt. Col. Rolando Nerona, Head of the Philippine
Army’s 64th Infantry Battalion—went to the town of Ampatuan to
confirm the report. At around 3 p.m., they passed by the
checkpoint along the highway in Ampatuan manned by the
1508th Provincial Mobile Group and asked whether they were
aware of the reported abduction. Members of the 1508th
Provincial Mobile Group denied having knowledge of what they
have witnessed at around 10 in the morning purportedly out of
fear of retaliation from the powerful Ampatuan clan.
Nevertheless, P/CI Sukarno Adil Dicay, the head of the Mobile
Group, instructed P/INSP Diongon to accompany the military on
foot
529
VOL. 668, MARCH 20, 2012 529

patrol as they conduct their operation relative to the reported

abduction.
7. Upon reaching Barangay Masalay, Ampatuan, the soldiers on
foot patrol found dead bodies, bloodied and scattered on the
ground and inside the four (4) vehicles used by the convoy. Three
(3) newly covered graves and a back hoe belonging to the
Maguindanao Provincial Government parked nearby with its
engine still running were found at the site. When the graves were
dug up by the soldiers, twenty four (24) dead bodies were found in
the first grave; six (6) dead bodies with three (3) vehicles,
particularly a Toyota Vios with the seal of the Tacurong City
Government, a Tamaraw FX and an L300 owned by the media
outfit UNTV were found in the second grave; and five (5) more
dead bodies were recovered from the third grave, yielding 35
buried dead bodies and, together with other cadavers, resulted in
a total of fifty seven (57) fatalities.
8. x x x
9. Examination of the bodies revealed that most, if not all, of the
female victims’ pants were found unzipped, and their sexual
organs mutilated and mangled. Five (5) of them were tested
positive for traces of semen, indicative of sexual abuse while some
of the victims were shot in the genital area. The genitalia of
Genelyn Mangudadatu was lacerated four (4) times, and blown off
by a gun fire, and her body horrifyingly mutilated. Two of the
women killed were pregnant, while another two were lawyers.
Twentynine (29) of the casualties were media personnel. Almost
all gun shot injuries were on the heads of the victims, rendering
them unrecognizable albeit two (2) bodies remain unidentified.
Those found in the graves were coarsely lumped like trash, and
some of the victims were found hogtied. All the dead bodies bear
marks of despicable torture, contempt and outrageous torment.3
A day after the carnage, on 24 November 2009, former

President Gloria MacapagalArroyo (President Arroyo)
issued Proclamation No. 1946, declaring a state of
emergency in the provinces of Maguindanao and Sultan
Kudarat, and in the City of Cotabato, “to prevent and
suppress the occurrence of
_______________
3 Rollo (G.R. No. 190293), pp. 105109.
530

similar other incidents of lawless violence in Central

Mindanao.” The full text of Proclamation No. 1946 reads:
DECLARING A STATE OF EMERGENCY IN CENTRAL

MINDANAO
WHEREAS, on November 23, 2009, several persons, including
women and members of media were killed in a violent incident
which took place in Central Mindanao;
WHEREAS, there is an urgent need to prevent and suppress
the occurrence of similar other incidents of lawless violence in
Central Mindanao;
NOW, THEREFORE, I, GLORIA MACAPAGALARROYO,
President of the Republic of the Philippines, by virtue of the
powers vested in me by the Constitution and by law, do hereby
proclaim, as follows:
SECTION 1. The Provinces of Maguindanao and Sultan
Kudarat and the City of Cotabato are hereby placed under a state
of emergency for the purpose of preventing and suppressing
lawless violence in the aforesaid jurisdiction.
SECTION 2. The Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP) are hereby ordered to
undertake such measures as may be allowed by the Constitution
and by law to prevent and suppress all incidents of lawless

violence in the said jurisdiction.
SECTION 3. The state of emergency covering the Provinces
of Maguindanao and Sultan Kudarat and the City of Cotabato
shall remain in force and effect until lifted or withdrawn by the
President.4
On 4 December 2009, President Arroyo issued

Proclamation No. 1959, declaring martial law and
suspending the privilege of the writ of habeas corpus (writ)
in the Province of Maguindanao, except for the identified
areas of the Moro Islamic Liberation Front (MILF). The full
text of Proclama
_______________
4 Id., at p. 185.
531
VOL. 668, MARCH 20, 2012 531

tion No. 1959, signed by President Arroyo and attested by

Executive Secretary Eduardo Ermita, reads:
PROCLAMATION NO. 1959

PROCLAIMING A STATE OF MARTIAL LAW AND
SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS IN THE PROVINCE OF MAGUINDANAO, EXCEPT
FOR CERTAIN AREAS
WHEREAS, Proclamation No. 1946 was issued on 24
November 2009 declaring a state of emergency in the provinces of
Maguindanao, Sultan Kudarat and the City of Cotabato for the
purpose of preventing and suppressing lawless violence in the
aforesaid areas;
WHEREAS, Section 18, Art.VII of the Constitution provides
that “x x x In case of invasion or rebellion, when the public safety
requires it, (the President) may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. x x x”
WHEREAS, R.A. No. 69865 provides that the crime of rebellion
or insurrection is committed by rising publicly and taking arms
against the Government for the purpose of x x x depriving the
Chief Executive or the Legislature, wholly or partially, of any of
their powers or prerogatives.”
WHEREAS, heavily armed groups in the province of
Maguindanao have established positions to resist government
troops, thereby depriving the Executive of its powers and
prerogatives to enforce the laws of the land and to maintain

public order and safety;
WHEREAS, the condition of peace and order in the province of
Maguindanao has deteriorated to the extent that the local judicial
_______________
5 Should be Republic Act No. 6968, which is “An Act Punishing the Crime of
Coup D’état by Amending Articles 134, 135 and 136 of Chapter One, Title Three of
Act Numbered ThirtyEight Hundred and Fifteen, Otherwise Known as the
Revised Penal Code, and for Other Purposes.” Republic Act No. 6986 is titled “An
Act Establishing a High School in Barangay Dulop, Municipality of Dumingag,
Province of Zamboanga Del Sur, to be Known as the Dulop High School, and
Appropriating Funds Therefor.”
532

system and other government mechanisms in the province are not

functioning, thus endangering public safety;
WHEREAS, the Implementing Operational Guidelines of the
GRPMILF Agreement on the General Cessation of Hostilities
dated 14 November 1997 provides that the following is considered
a prohibited hostile act: “x x x establishment of checkpoints except
those necessary for the GRP’s enforcement and maintenance of
peace and order; and, for the defense and security of the MILF in
their identified areas, as jointly determined by the GRP and
MILF. x x x”
proclaim, as follows:
SECTION 1. There is hereby declared a state of martial law
in the province of Maguindanao, except for the identified areas of
the Moro Islamic Liberation Front as referred to in the
Implementing Operational Guidelines of the GRPMILF
Agreement on the General Cessation of Hostilities.
SECTION 2. The privilege of the writ of habeas corpus shall
likewise be suspended in the aforesaid area for the duration of the
state of martial law.6
On 6 December 2009, President Arroyo submitted her

Report to Congress in accordance with the provision in
Section 18, Article VII of the 1987 Constitution, which
states that “within fortyeight hours from the proclamation
of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in
person or in writing to the Congress.” In her Report,

President Arroyo presented the following justifications for
imposing martial law and suspending the writ in
Maguindanao, to wit:
Pursuant to the provision of Section 18, Article VII of the 1987

Constitution, the President of the Republic of the Philippines is
submitting the hereunder Report relative to Proclamation No.
1959 “Proclaiming a State of Martial Law and Suspending the
Privilege of the
_______________
6 Rollo (G.R. No. 190293), pp. 186187.
533
VOL. 668, MARCH 20, 2012 533

Writ of Habeas Corpus in the Province of Maguindanao, except for

Certain Areas,” which she issued on 04 December 2009, as
required by public safety, after finding that lawless elements
have taken up arms and committed public uprising
against the duly constituted government and against the
people of Maguindanao, for the purpose of removing from
the allegiance to the Government or its laws, the Province
of Maguindanao, and likewise depriving the Chief
Executive of her powers and prerogatives to enforce the
laws of the land and to maintain public order and safety,
to the great damage, prejudice and detriment of the people
in Maguindanao and the nation as a whole.
xxx
The capture of identified leader Mayor Andal Ampatuan, Jr.
would have resulted in the expeditious apprehension and
prosecution of all others involved in the gruesome massacre, but
the situation proved the contrary. The Ampatuan group backed by
formidable group of armed followers, have since used their
strength and political position to deprive the Chief Executive of
her power to enforce the law and to maintain public order and
safety. More importantly, a separatist group based in
Maguindanao has joined forces with the Ampatuans for this
purpose. These are the facts:
1. Local government offices in the province of Maguindanao
were closed and ranking local government officials refused to
discharge their functions, which hindered the investigation and
prosecution team from performing their tasks;
2. The Local Civil Registrar of Maguindanao refused to accept
the registration of the death certificates of the victims purportedly
upon the orders of Andal Ampatuan Sr.;

3. The local judicial system has been crippled by the absence or
nonappearance of judges of local courts, thereby depriving the
government of legal remedies in their prosecutorial
responsibilities (i.e. issuance of warrants of searches, seizure and
arrest). While the Supreme Court has designated an Acting
Presiding Judge from another province, the normal judicial
proceedings could not be carried out in view of threats to their
lives or safety, prompting government to seek a change of venue
of the criminal cases after informations have been filed.
534

Duly verified information disclosed that the Ampatuan group is

behind the closing down of government offices, the refusal of local
officials to discharge their functions and the simultaneous
absence or nonappearance of judges in local courts.
Detailed accounts pertaining to the rebel armed groups and their
active movements in Maguindanao have been confirmed:
(I) As of November 29, 2009, it is estimated that there are about
2,413 armed combatants coming from the municipalities of Shariff
Aguak, Datu Unsay, Datu Salibo, Mamasapano, Datu Saudi
Ampatuan (Dikalungan), Sultan Sa Barungis, Datu Piang,
Guindulungan, and Talayan, who are in possession of around
2,000 firearms/armaments.
(II) The Ampatuan group has consolidated a group of rebels
consisting of 2,413 heavily armed men, with 1,160 of them having
been strategically deployed in Maguindanao. Validated
information on the deployment of rebels are as follows:
I. Around five hundred (500) armed rebels with 2 “Sanguko”
armored vehicles are in offensive position in the vicinity of Kakal,
Ampatuan, Dimampao, Mamasapano and Sampao Ampatuan.
II. A group with more or less 200 armed rebels has moved from
Old Maganoy into an offensive position.
III. More or less 80 fully armed rebels remain in Tuka,
Mamasapano.
IV. More or less 50 fully armed rebels led by a former MNLF
Commander are in offensive position in Barangay Baital, Rajah
Buayan.
V. More or less 70 fully armed rebels with two (2) M60 LMG
remain in offensive position in the vicinity of Barangay
Kagwaran, Barangay Iginampong, Datu Unsay (right side of
SalvoGeneral Santos City national highway).
VI. More or less 60 fully armed rebels with four (4) M60 LMG
remain in offensive position in the vicinity of Kinugitan, the
upper portion of Barangay Maitumaig, Datu Unsay.

VII. Kagui Akmad Ampatuan was sighted in Sultan Sa Barongis
with 400 armed rebels. Locals heard him uttered “PATAYAN NA
KUNG PATAYAN.”
535
VOL. 668, MARCH 20, 2012 535

VIII. More or less 100 armed rebels led by one of the identified
leaders in the massacre have been sighted at the quarry of
Barangay Lagpan, boundary of Rajah Buayan and Sultan Sa
Barongis. The group is armed with one (1) 90RR, one (1) cal 50
LMG, two (2) cal 30 LMG, two (2) 60 mm mortar and assorted
rifles.
The strength of the rebels is itself estimated to be around 800
with about 2,000 firearms (Fas). These forces are concentrated in
the following areas in Maguindanao which are apparently also
their political stronghold:
xxx
The existence of this armed rebellion is further highlighted by the
recent recovery of high powered firearms and ammunitions from
the 400 security escorts of Datu Andal Ampatuan Sr.
xxx
Indeed, the nature, quantity and quality of their
weaponry, the movement of heavily armed rebels in
strategic positions, the closure of the Maguindanao
Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay
Municipal Hall, and fourteen other municipal halls, and
the use of armored vehicles, tanks and patrol cars with
unauthorized “PNP/Police” markings, all together confirm
the existence of armed public uprising for the political
purpose of:
(1) removing allegiance from the national government of
the Province of Maguindanao; and,
(2) depriving the Chief Executive of her powers and
prerogatives to enforce the laws of the land and to
maintain public order and safety.
While the government is at present conducting legitimate
operations to address the ongoing rebellion, public safety
still requires the continued implementation of martial law
and the suspension of the privilege of the writ of ha bea s
corpus in the Province of Maguindanao until the time that
such rebellion is completely quelled.7 (Emphasis supplied)
_______________
7 Id., at pp. 163164, 173177, 182.
536

In the meantime, the present petitions were filed

impugning the constitutionality of Proclamation No. 1959.
1. G.R. No. 190293 is a petition “for the issuance of a
temporary restraining order and writs of prohibition
and preliminary prohibitory injunction (1) to declare
Proclamation No. 1959 or any act, directive or order
arising from or connected to it as unconstitutional,
and (2) to enjoin public respondents from further
enforcing the same.”
2. G.R. No. 190294 is a petition for certiorari assailing
the constitutionality of Proclamation No. 1959 “for
gross insufficiency of the factual basis in proclaiming
a state of martial law and suspending the [writ] in the
Province of Maguindanao.” It prayed for the issuance
of a writ of prohibition under Section 2 of Rule 65 to
enjoin and prohibit respondents from enforcing
Proclamation No. 1959.
3. G.R. No. 190301 is a petition seeking “the
nullification of Proclamation No. 1959, proclaiming a
state of martial law and suspending the [writ] in the
province of Maguindanao, except for certain areas, as
it is patently illegal and unconstitutional for lack of
any factual basis.”
4. G.R. No. 190302 is a petition for certiorari to declare
Proclamation No. 1959 as null and void for being
unconstitutional, and for prohibition to enjoin
respondents from further actions or proceedings in
enforcing or implementing Proclamation No. 1959.
5. G.R. No. 190307 is a petition for certiorari,
prohibition, and mandamus with a prayer for a
preliminary prohibitory injunction and/or a
temporary restraining order, and/or a petition for
review pursuant to Article VII, Section 18, paragraph
3 of the 1987 Constitution, asking the Court to
declare that then Executive Secretary Eduardo
Ermita committed grave abuse of discre
537
VOL. 668, MARCH 20, 2012 537

tion amounting to lack or excess of jurisdiction when

he signed, in the name of President Arroyo,
Proclamation No. 1959. The petition also prayed for
the issuance of a Temporary Restraining Order and/or
preliminary prohibitory injunction, prohibiting
respondents, and anyone acting under their authority,
stead, or behalf, from implementing Proclamation No.
1959 during the pendency of the case.
6. G.R. No. 190356 is a petition for prohibition, with an
application for the issuance of a temporary
restraining order and/or a writ of preliminary
injunction, assailing the constitutionality and the
sufficiency of the factual basis of Proclamation No.
1959, declaring a state of martial law in the province
of Maguindanao (except for identified areas of the
MILF) and suspending the writ in the same area.
7. G.R. No. 190380 is a petition for certiorari assailing
the validity of Proclamation No. 1959, declaring a
state of martial law in the province of Maguindanao,
except for the identified areas of the MILF, and
suspending the writ in the same area.
On 9 December 2009, Congress convened in joint session
pursuant to Section 18, Article VII of the 1987
Constitution, which provides, “The Congress, if not in
session, shall, within twentyfour hours following such
proclamation [of martial law] or suspension [of the writ],
convene in accordance with its rules without need of a call.”
Meanwhile, eight days after the declaration of martial
law, on 12 December 2009, President Arroyo issued
Proclamation No. 1963 lifting martial law and restoring the
writ in Maguindanao. The full text of Proclamation No.
1963, signed by President Arroyo and attested by Executive
Secretary Eduardo Ermita, reads:
539
VOL. 668, MARCH 20, 2012 539

PROCLAMATION NO. 1963

PROCLAIMING THE TERMINATION OF THE STATE OF
MARTIAL LAW AND THE RESTORATION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE
PROVINCE OF MAGUINDANAO
WHEREAS, Proclamation No. 1946 was issued on 24
November 2009 declaring a state of emergency in the provinces of
Maguindanao, Sultan Kudarat and the City of Cotabato for the
purpose of preventing and suppressing lawless violence in the

aforesaid areas;
WHEREAS, by virtue of the powers granted under Section 18,
Article VII of the Constitution, the President of the Philippines
promulgated Proclamation No. 1959 on December 4, 2009,
proclaiming a state of martial law and suspending the privilege of
the writ of Habeas Corpus in the province of Maguindanao, except
for certain areas;
WHEREAS, the Armed Forces of the Philippines and the
Philippine National Police have reported that over six hundred
(600) persons who allegedly rose publicly and took up arms
against the Government have surrendered or have been arrested
or detained;
WHEREAS, the Armed Forces of the Philippines and the
Philippine National Police have reported that the areas where
heavily armed groups in the province of Maguindanao established
positions to resist government troops have been cleared;
WHEREAS, the court and prosecutors’ offices of Cotabato City
have resumed normal working hours, paving the way for the
criminal justice system in Maguindanao to be restored to
normalcy;
WHEREAS, the ViceGovernor of the Autonomous Region of
Muslim Mindanao has assumed as Acting Governor, paving the
way for the restoration of the functioning of government
mechanisms in the province of Maguindanao;
revoke Proclamation No. 1959 and proclaim the termination of
the state of martial law and the restoration of the privilege of the
writ of habeas
539
VOL. 668, MARCH 20, 2012 539

corpus in the province of Maguindanao; provided that

Proclamation No. 1946 shall continue to be in force and effect.8
In the Resolutions dated 8 and 15 December 2009,9 the

Court consolidated the petitions and required the Office of
the Solicitor General and the respondents to comment on
the petitions.
In a Resolution dated 12 January 2010, the Court
resolved “to appoint as amici curiae Justice Vicente
Mendoza, Senator Joker Arroyo, and Father Joaquin
Bernas, [S.J.] and request them to submit their respective
Amicus Brief on the questions to be addressed by the

parties.”10
Meanwhile, on 9 December 2009, an Information for
rebellion was filed before the Regional Trial Court, Branch
15, Cotabato City (RTCCotabato), against Ampatuan, et
al.11 The information reads:
“That on or about 27th day of November, 2009, and

continuously thereafter, until the present time, in Maguindanao
Province
_______________
8 Rollo (G.R. No. 190293), pp. 190191.
9 Rollo (G.R. No. 190293), pp. 8384; Rollo (G.R. No. 190356), p. 55.
10 Rollo (G.R. No. 190293), p. 407.
11 The accused are: Datu Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan,
Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan, and Datu Sajid Islam Uy
Ampatuan, as persons who allegedly promoted, maintained or headed the
rebellion; and Kusain Akmad Sakilan, Jovel Vista Lopez, Rommy Gimba Mamay,
Sammy Duyo Villanueva, Ibrahim Tukya Abdulkadir, Samil Manalo Mindo, Goldo
B. Ampatuan, Amaikugao Obab Dalgan, Billy Cabaya Gabriel, Jr., Abdulla
Kaliangat Ampatuan, Moneb Smair Ibrahim, Umpa Ugka Yarka, Manding
Abdulkadir, Dekay Idra Ulama, Kapid Gabriel Cabay, Koka Batong Managilid,
Sammy Ganda Macabuat, Duca Lendungan Amban, Akmad Abdullah Ulilisen and
several John Does, as participants or the persons executing the commands of
others in a rebellion or insurrection. (RTCQuezon City Order dated 26 March
2010, pp. 34).
540

and within the jurisdiction of this Honorable Court, accused Datu

Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad
Tato Ampatuan, Datu Anwar Ampatuan and Datu Sajid Islam Uy
Ampatuan as heads of the rebellion, conspiring, confederating and
cooperating with each other, as well as with the other accused as
participants or executing the commands of others in the rebellion
and also with other John Does whose whereabouts and identities
are still unknown, the said accused, who are heads of the
rebellion, did then and there willfully, unlawfully and feloniously
help, support, promote, maintain, cause, direct and/or command
their coaccused who are their followers to rise publicly and take
arms against the Republic of the Philippines, or otherwise
participate in such armed public uprising, for the purpose of
removing allegiance to the government or its laws, the territory of
the Republic of the Philippines or any part thereof or depriving
the Chief Executive of any of her powers or prerogatives as in fact

they have been massing up armed men and organizing
assemblies, as a necessary means to commit the crime of
rebellion, and in furtherance thereof, have then and there
committed acts preventing public prosecutors from being
available to conduct inquest and preliminary investigations.
There were massive formations of numerous armed civilians
supported by armored vehicles and under the command of the
Ampatuans who have formed a private army to resist government
troops; that the local provincial government of Maguindanao
could not function with their employees going on mass leave and
their respective offices were closed and not functioning. The
Regional Trial Courts of the area are not functioning, refused to
accept the application for search warrants for violation of PD 1866
to authorize the search of the properties of the heads of the
rebellion; and that there was undue delay in the issuance of court
processes despite the exigency of the situation.
CONTRARY TO LAW.”12
On the next day, 10 December 2009, accused Ampatuan,

et al. filed an Urgent Omnibus Motion, which included a
motion for judicial determination of probable cause for the
offense charged. On the same day, the Acting Presiding
Judge of RTCCotabato issued an Order, stating that “the
Court needs
_______________
12 RTCQuezon City Order dated 26 March 2010, p. 4.
541
VOL. 668, MARCH 20, 2012 541

time to go over the resolution finding probable cause

against the accused Datu Andal Ampatuan, Sr., [et al.].”
On 1 February 2010, the Regional Trial Court of Quezon
City received the records of the case, pursuant to the
Supreme Court’s En Banc Resolution, dated 12 January
2010, which ordered the transfer of venue of the rebellion
case to Quezon City. The case, docketed as Criminal Case
No. Q10162667 and entitled People of the Philippines v.
Datu Andal Ampatuan, Sr., et al., was raffled to Branch 77
of the Regional Trial Court of Quezon City (RTCQuezon
City) on 2 February 2010.
On 3 February 2010, the accused filed an Urgent Motion
praying for the issuance of an order suspending the
transfer of custody of all the accused pending the resolution

of their motion for judicial determination of probable cause.
On 26 March 2010, the RTCQuezon City dismissed the
charge of rebellion for lack of probable cause, to wit:
“After a careful and judicious scrutiny of the evidence forming part of

the records and those adduced by the prosecution during the hearing on
the motion for judicial determination of probable cause, the Court is
convinced that there exist[s] no probable cause to hold under detention
and to indict the accused for rebellion.
xxxx
Rebellion under Article 134 of the Revised Penal Code is committed—
[B]y rising publicly and taking arms against the Government for the
purpose of removing from the allegiance to said Government or its laws,
the territory of the Republic of the Philippines or any part thereof, or any
body of land, naval, or other armed forces or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers
or prerogatives.
The elements of the offense are:
1. That there be a (a) public uprising and (b) taking arms against
the Government; and
2. That the purpose of the uprising or movement is either—
542

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of
any of their powers and prerogatives.
xxxx
The essential element of public armed uprising against the
government is lacking. There were no masses or multitudes involving
crowd action done in furtherance of a political end. So, even assuming
that there was uprising, there is no showing that the purpose of the
uprising is political, that is, to overthrow the duly constituted
government in order to establish another form of government. In other
words, the second element is also absent.
xxxx
x x x It is quite interesting that the prosecution failed to present any
particular instance where the accused had directly or indirectly
prevented government prosecutors from performing their job relative to
the prosecution of the suspects in the infamous Maguindanao massacre.
On the contrary, documentary evidence on record shows that the
alleged principal suspect in the mass killings, Datu Andal Ampatuan,
Jr., was made to undergo inquest proceedings at General Santos City,

immediately after he was taken into custody by law enforcement
authorities. This alone belies the prosecution’s theory that the
prosecutors were not available to conduct inquest and preliminary
investigations relative to the mass killings in the Municipality of
Ampatuan, Province of Maguindanao.
xxxx
x x x [T]he intelligence reports presented by the military and police
are unfounded. The reports do not suggest that the alleged armed groups
loyal to the accused are initiating violent and hostile actions, whether
directly or indirectly, against government security forces. Even the
discovery and confiscation of large cache of firearm and ammunitions,
allegedly belonging to the Ampatuans, cannot be considered as an act of
rebellion. In fact, the firearms and ammunitions were subsequently
unearthed, recovered and confiscated from
543
VOL. 668, MARCH 20, 2012 543

different places. The government security forces should

have been able to engage and neutralize the reported
armed groups on the basis of its intelligence reports
confirming their size, strength and whereabouts.
xxxx
The statements of prosecution witnesses Mangacop and Dingcong are
general allegations. Their statements do not show that the accused were
responsible for the mass leave of officials and employees of the local
government units. There is no evidence to show that the accused actually
prevented the local officials and employees from reporting to their offices.
The evidence will show that the Department of Interior and Local
Government and the Philippine National Police closed down these offices,
without any justifiable reasons. In fact, there were news footages which
showed that many employees were caught by surprise on the unexpected
closure of their offices.
xxxx
It is alleged in the Information that the courts were no longer
functioning in Cotabato City and in Maguindanao province, which have
jurisdiction over the place of the commission of the massacre. The factual
circumstances, however, belie said allegation. This Court takes judicial
notice of the fact that no less than the Supreme Court of the Republic of
the Philippines had denied the allegation that civilian courts were or are
no longer functioning in Maguindanao.
xxxx
WHEREFORE, premises considered, the Court finds that there exists
no probable cause to indict and hold under detention the accused for
rebellion. Accordingly, the instant case is hereby dismissed and the
accusedmovants are hereby ordered released from further detention,

unless they are held by a court of law for other lawful cause/s.
Let this Order be served personally upon the accusedmovants,
through the responsible officers of the law having custody over them,
who are hereby directed to release the accused from detention
immediately upon receipt hereof.
544

SO ORDERED.”13
In an Order dated 28 May 2010, the RTCQuezon City

denied the prosecution’s motion for reconsideration of the
Order dated 26 March 2010.
The DOJ filed a petition for certiorari14 before the Court
of Appeals assailing the dismissal of the rebellion charges
against accused Ampatuan, et al.
In a Decision promulgated on 15 December 2011,15 the
Court of Appeals denied the petition for certiorari. Quoting
the findings of the RTCQuezon City, the Court of Appeals
held that there is no probable cause as there is no showing
that all the elements of the crime of rebellion are present.
The Court of Appeals stated that “a review of its own
narration of events only lends to the belief that the
rebellion existed only in the minds of the complainants.”
The Court of Appeals ruled that there was no armed public
uprising, finding “no proof that armed groups were massing
up and were planning to instigate civil disobedience and to
challenge the government authorities for political ends.”
The Issues
The crux of the present controversy is the

constitutionality of Proclamation No. 1959, declaring
martial law and suspending the writ in Maguindanao. The
threshold issue before this Court is whether there is
sufficient factual basis for the issuance of Proclamation No.
1959 based on the stringent re
_______________
13 RTCQuezon City Order dated 26 March 2010, pp. 1013, 1516, 18.
Penned by Presiding Judge Vivencio S. Baclig.
14 Under Rule 65 of the 1997 Rules of Procedure. Docketed as CAG.R.
SP No. 115168.
15 Penned by Associate Justice Elihu A. Ybañez, and concurred in by

Associate Justices Fernanda Lampas Peralta and Francisco P. Acosta.
545
VOL. 668, MARCH 20, 2012 545

quirements set forth in Section 18, Article VII of the 1987

Constitution.
In its 15 December 2009 Resolution, the Court
additionally posed the following questions for resolution:
1. Whether the issuance of Proclamation No. 1963,
lifting martial law and restoring the writ in Maguindanao,
rendered the issues raised in the present petitions moot
and academic;
2. Whether the term “rebellion” in Section 18, Article
VII of the 1987 Constitution has the same meaning as the
term “rebellion” that is defined in Article 134 of the
Revised Penal Code;
3. Whether the declaration of martial law or the
suspension of the writ authorizes warrantless arrests,
searches and seizures;
4. Whether the declaration of martial law or the
suspension of the writ is a joint and sequential function of
the President and Congress such that, without
Congressional action on the proclamation either affirming
or revoking it, the President having in the meantime lifted
the declaration and restored the writ, this Court has
nothing to review;
5. If the constitutional power of this Court to review
the factual basis of the declaration of martial law or
suspension of the writ can be exercised simultaneously
with the constitutional power of Congress to revoke the
declaration or suspension, and the decision of this Court
conflicts with the decision of Congress, which decision shall
prevail; and
6. Whether this Court’s determination of the
sufficiency of the factual basis of the declaration of martial
law or suspension of the writ, which in the meantime has
been lifted and restored, respectively, would be essential to
the resolution of issues concerning the validity of related
acts that the government committed during the time
martial law was in force.
In its Comment Re: Resolution dated 15 December 2009,
the OSG raised the issue of whether petitioners possess
legal
546

standing to challenge the constitutionality of Proclamation

No. 1959.
Discussion
I dissent from the majority’s dismissal of the petitions as

moot. I find Proclamation No. 1959 unconstitutional for
lack of factual basis as required in Section 18, Article VII of
the 1987 Constitution for the declaration of martial law
and suspension of the writ. The majority in effect refuses to
exercise this Court’s constitutional power in Section 18 of
Article VII, to “review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof.”
Before proceeding to the substantive issues, I shall first
discuss the issue on locus standi.
In its Comment Re: Resolution dated 15 December 2009,
the OSG questioned the legal standing of petitioners in
challenging the constitutionality of Proclamation No. 1959.
The OSG argued that the phrase “any citizen” in Section
18, Article VII of the 1987 Constitution must be read in
conjunction with the phrase “appropriate proceeding.”
Since petitioners deemed the original actions for certiorari
and prohibition as the appropriate proceeding referred to in
Section 18, Article VII of the Constitution, petitioners must
satisfy the requirements under Rule 65 of the Rules of
Court, one of which is the institution of the action by the
aggrieved party. The OSG pointed out that none of the
petitioners qualify as an aggrieved party.
This is error.
“Legal standing” or locus standi has been defined as a
personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result
of the
547
VOL. 668, MARCH 20, 2012 547

governmental act that is being challenged.16 In case of a

suit questioning the sufficiency of the factual basis of the
proclamation of martial law or suspension of the writ, such
as here, Section 18, Article VII of the Constitution
expressly provides:
“The Supreme Court may review, in an appropriate proceeding

filed by a ny citizen, the sufficiency of the factual basis of the
the writ of habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.”
(Emphasis supplied)
It is clear that the Constitution explicitly clothes “a ny

citizen” with the legal standing to challenge the
constitutionality of the declaration of martial law or
suspension of the writ. The Constitution does not make any
distinction as to who can bring such an action. As discussed
in the deliberations of the Constitutional Commission, the
“citizen” who can challenge the declaration of martial law
or suspension of the writ need not even be a taxpayer.17
This was deliberately designed to arrest, without further
delay, the grave effects of an illegal declaration of martial
law or suspension of the writ, and to provide immediate
relief to those aggrieved by the same. Accordingly,
petitioners, being Filipino citizens, possess legal standing
to file the present petitions assailing the sufficiency of the
factual basis of Proclamation No. 1959.
Moreover, given the transcendental importance of the
issues raised in the present petitions, the Court may relax
the standing requirement and allow a suit to prosper even
where
_______________
16 SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 507; 421
SCRA 656, 665666 (2004), citing Integrated Bar of the Philippines v.
Zamora, 392 Phil. 618; 338 SCRA 81 (2000).
17 BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 Edition,
p. 474.
548

there is no direct injury to the party claiming the right of

judicial review.18 The Court has held:
“Notwithstanding, in view of the paramount importance and

the constitutional significance of the issues raised in the petitions,
this Court, in the exercise of its sound discretion, brushes aside
the procedural barrier and takes cognizance of the petitions, as
we have done in the early Emergency Powers Cases, where we
had occasion to rule:
‘x x x ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders
issued by President Quirino although they [involved] only
an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not
proper parties and ruled that ‘transcendental
importance to the public of these cases demands that
they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure.’ We
have since then applied the exception in many other
cases.”19 (Emphasis supplied)
I.
Whether the issuance of Proclamation No. 1963, lifting

martial law and restoring the writ in the province of
Maguindanao, rendered the issues raised in the petitions
moot and academic.
The majority dismisses the petitions on mootness,
agreeing with respondents’ contention that the issuance of
Proclamation No. 1963, lifting martial law and restoring
the writ in the province of Maguindanao, rendered the
issues raised in the present petitions moot and academic.
Respondents maintain
_______________
18 David v. Arroyo, 522 Phil. 705, 757759; 489 SCRA 160, 220 (2006).
See Chavez v. Public Estates Authority, 433 Phil. 506; 403 SCRA 1 (2002),
Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623; 342 SCRA 449
(2000).
19 Lim v. Executive Secretary, 430 Phil. 555, 570571; 380 SCRA 739,
751 (2002) citing Bagong Alyansang Makabayan v. Zamora, supra.
549
VOL. 668, MARCH 20, 2012 549

that the petitions have ceased to present an “actual case or

controversy” with the lifting of martial law and the
restoration of the writ, the sufficiency of the factual basis of
which is the subject of these petitions. Proclamation No.
1963 is allegedly a “supervening event” that rendered of no

practical use or value the consolidated petitions.
As a rule, courts may exercise their review power only
when there is an actual case or controversy, which involves
a conflict of legal claims susceptible of judicial resolution.
Such a case must be “definite and concrete, touching the
legal relations of parties having conflicting legal interests;”
a real, as opposed to an imagined, controversy calling for a
specific relief.20
Corollarily, courts generally decline jurisdiction over a
moot and academic case or outrightly dismiss it on the
ground of mootness. A moot and academic case is one that
ceases to present a justiciable controversy by virtue of
supervening events, so that assuming jurisdiction over the
same, and eventually deciding it, would be of no practical
use or value.21
In David v. Arroyo,22 this Court held that the “moot and
academic” principle is not a magical formula that
automatically dissuades courts in resolving a case. Courts
are not prevented from deciding cases, otherwise moot and
academic, if (1) there is a grave violation of the
Constitution;23 (2) the situation is of exceptional character
and of paramount public interest;24 (3) the constitutional
issue raised requires formulation of controlling principles
to guide the bench, the bar, and
_______________
20 David v. Arroyo, supra note 18 at p. 753; p. 213.
21 Id., at p. 753; pp. 213214.
22 Id., at p. 754; pp. 214215.
23 Id., citing Province of Batangas v. Romulo, 473 Phil. 806; 429 SCRA
736 (2004).
24 Id., citing Lacson v. Perez, 410 Phil. 78; 357 SCRA 756 (2001).
550

the public;25 and (4) the case is capable of repetition yet

evading review.26
In Province of North Cotabato v. Government of the
Republic of the Philippines Peace Panel on Ancestral
Domain (GRP),27 the Court ruled that once a suit is filed,
the Court cannot automatically be deprived of its
jurisdiction over a case by the mere expedient of the doer
voluntarily ceasing to perform the challenged conduct.
Otherwise, the doer would be dictating when this Court

should relinquish its jurisdiction over a case. Further, a
case is not mooted when the plaintiff seeks damages or
prays for injunctive relief against the possible recurrence of
the violation.28
Contrary to the majority opinion, the present petitions
fall squarely under these exceptions, justifying this Court’s
exercise of its review power.
First, whether Proclamation No. 1959 complied with the
requirements under Section 18, Article VII of the
Constitution is without doubt an extremely serious
constitutional question. In order to forestall any form of
abuse in the exercise of the President’s extraordinary
emergency powers, as what happened during the Martial
Law regime under former President Ferdinand Marcos
(President Marcos), the 1987 Constitution has carefully put
in place specific safeguards, which the President must
strictly observe. Any declaration of martial law or
suspension of the writ falling short of the constitutional
requirements must be stricken down as a matter of
constitutional duty by this Court.
_______________
25 Id., citing Province of Batangas v. Romulo, supra.
26 Id., citing Albaña v. Commission on Elections, 478 Phil. 941; 435
SCRA 98 (2004); Acop v. Guingona, Jr., 433 Phil. 62; 383 SCRA 577
(2002); SANLAKAS v. Executive Secretary Reyes, supra note 16.
27 G.R. Nos. 183591, 183752, 183893, 183951, 183962, 14 October
2008, 568 SCRA 402.
28 Id.
551
VOL. 668, MARCH 20, 2012 551

Second, whether the President exercised her

CommanderinChief powers in accordance with the
Constitution indisputably presents a transcendental issue
fully imbued with public interest. I agree with amicus
curiae Father Joaquin Bernas’ opinion: “The practice of
martial rule can have a profoundly disturbing effect on the
life, liberty and fortunes of people. Likewise, the actions
taken by the police and military during the period when
martial law is in effect can have serious consequences on
fundamental rights.”29
Third, the issue on the constitutionality of Proclamation

No. 1959 unquestionably requires formulation of
controlling principles to guide the Executive, Legislature,
and the public.
The President’s issuance of Proclamation No. 1959
generated strong reactions from various sectors of society.
This, of course, is an expected response from a nation
whose painful memory of the dark past remains fresh. The
nation remembers that martial law was the vehicle of
President Marcos to seize unlimited State power, which
resulted in gross and wanton violations of fundamental
human rights of the people. That era saw the collapse of
the rule of law and what reigned supreme was a one man
rule for the dictator’s own personal benefit.
The present controversy, being the first case under the
1987 Constitution involving the President’s exercise of the
power to declare martial law and suspend the writ,
provides this Court with a rare opportunity,30 which it
must forthwith
_______________
29 Rollo (G.R. No. 190293), p. 508; Brief of Amicus Curiae Father
Joaquin Bernas, S.J.
30 Retired Chief Justice Panganiban called this a historic moment and
reminded the Court of its duty to uphold the Constitution. He writes:
The Court faces a historic moment. It cannot cower or copout or hide
behind legalisms. Worse, in a false sense of gratitude, it should not invent
legal excuses to justify or cover plainly unconstitutional acts. Rare is the
opportunity for greatness. Let the Court not
552

seize, to formulate controlling principles for the guidance of

all sectors concerned, most specially the Executive which is
in charge of enforcing the emergency measures. Dismissing
the petitions on the ground of mootness will most certainly
deprive the entire nation of instructive and valuable
principles on this extremely crucial national issue.
Fourth, the present case is capable of repetition yet
evading review. I agree with Father Bernas’ view:
“[H]istory clearly attests that the events that can lead to
martial law, as well as the imposition of martial law itself,
and the suspension of the privilege together with actions
taken by military and police during a period of martial law
are capable of repetition and are too important to allow to

escape review through the simple expedient of the
President lifting a challenged proclamation.”31
Fifth, the respondent’s or doer’s voluntary cessation of
the questioned act does not by itself deprive the Court of its
jurisdiction once the suit is filed. In this case, President
Arroyo, after eight days from the issuance of Proclamation
No. 1959, issued Proclamation No. 1963 revoking
Proclamation No. 1959. President Arroyo’s lifting of martial
law and restoration of the writ translate to a voluntary
cessation of the very acts complained of in the present
petitions. However, the present petitions were filed with
this Court while Proclamation No. 1959 was still in effect
and before Proclamation No. 1963 was issued, thus
foreclosing any legal strategy to divest this Court of its
jurisdiction by the mere cessation or withdrawal of the
challenged act.
_______________
squander the moment. Let it perform its duty forthrightly and uphold
the Constitution.
(http://opinion.inquirer.net/inquireropinion/columns/view/20091220
243027/UpholdtheConstitution [accessed on 4 November 2011], With
Due Respect: Uphold the Constitution)
31 Rollo (G.R. No. 190293), p. 509; Brief of Amicus Curiae Father
553
VOL. 668, MARCH 20, 2012 553

Moreover, the fact that every declaration of martial law

or suspension of the writ will involve its own set of
circumstances peculiar to the necessity of time, events or
participants should not preclude this Court from reviewing
the President’s use of such emergency powers. Whatever
are the circumstances surrounding each declaration of
martial law or suspension of the writ, the declaration or
suspension will always be governed by the same safeguards
and limitations prescribed in the same provisions of the
Constitution. Failing to determine the constitutionality of
Proclamation No. 1959 by dismissing the cases on the
ground of mootness sets a very dangerous precedent to the
leaders of this country that they could easily impose
martial law or suspend the writ without any factual or
legal basis at all, and before this Court could review such
declaration, they would simply lift the same and escape

possible judicial rebuke.
II.
Whether the term “rebellion” in Section 18, Article VII of the
1987 Constitution has the same meaning as the term
“rebellion” that is defined in Article 134
of the Revised Penal Code.
Article 134 of the Revised Penal Code, as amended by
Republic Act No. 6968,32 defines the crime of rebellion,
thus:
“Art. 134. Rebellion or insurrection; How committed.—The

crime of rebellion or insurrection is committed by rising publicly
and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the
territory of the Philippine Islands or any part thereof, of any body
of land, naval or other armed forces, depriving the Chief
Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.”
_______________
32 An Act Punishing the Crime of Coup D’état By Amending Articles
134, 135 and 136 of Chapter One, Title Three of Act Numbered Thirty
Eight Hundred and Fifteen, Otherwise Known as The Revised Penal Code,
and for Other Purposes.
554

The Constitution, however, does not provide any

definition of the term “rebellion.” Portions of the first
paragraph of Section 18, Article VII of the Constitution,
where the term “rebellion” appears, read:
“Section 18. The President shall be the CommanderinChief of

under martial law.”
Respondents submit that the term “rebellion” must, “for

constitutional law purposes, be applied in such manner as
to be amply responsive to the call of the times.”
Respondents point out that the deliberations of the 1986

Constitutional Commission reveal that the concept of the
term “rebellion” depends much on its magnitude and scope,
as determined by the President based on prevailing
circumstances.33
I disagree. The term “rebellion” in Section 18, Article VII
of the 1987 Constitution must be understood as having the
same meaning as the crime of “rebellion” that is defined in
Article 134 of the Revised Penal Code, as amended.
First, this is the clear import of the last two paragraphs
of Section 18, Article VII of the Constitution, which
explicitly state:
“The suspension of the privilege of the writ of habeas corpus

shall apply only to persons judicially charged for rebellion or
offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas
corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be
released.” (Emphasis supplied)
_______________
33 Rollo (G.R. No. 190293), p. 138.
555
VOL. 668, MARCH 20, 2012 555

For a person to be judicially charged for rebellion, there

must necessarily be a statute defining rebellion. There is
no statute defining rebellion other than the Revised Penal
Code. Hence, “one can be ‘judicially charged’ with rebellion
only if one is suspected of having committed acts defined as
rebellion in Article 134 of the Revised Penal Code.”34
Second, the Revised Penal Code definition of rebellion is
the only legal definition of rebellion known and understood
by the Filipino people when they ratified the 1987
Constitution. Indisputably, the Filipino people recognize
and are familiar with only one meaning of rebellion, that is,
the definition provided in Article 134 of the Revised Penal
Code. To depart from such meaning is to betray the
Filipino people’s understanding of the term “rebellion”
when they ratified the Constitution. There can be no
question that “the Constitution does not derive its force
from the convention which framed it, but from the people
who ratified it.”35
Third, one of the Whereas clauses of Proclamation No.

1959 expressly cites the Revised Penal Code definition of
rebellion, belying the government’s claim that the Revised
Penal Code definition of rebellion merely guided the
President in issuing Proclamation No. 1959.
In SANLAKAS v. Executive Secretary,36 where the Court
regarded President Arroyo’s declaration of a state of
rebellion
_______________
34 Id., at p. 493, Amicus Memorandum of Justice Vicente V. Mendoza.
35 See retired Chief Justice Puno’s separate concurring opinion in
United PepsiCola Supervisory Union v. Judge Laguesma, 351 Phil. 244,
292; 288 SCRA 15, 58 (1998), citing Cooley, Treatise on Constitutional
Limitations, Vol. 1, pp. 142143 [1927]; also cited in Willoughby, The
Constitutional Law of the United States, Sec. 32, pp. 5455, Vol. 1 [1929].
36 Supra note 16.
556

in Proclamation No. 427 a superfluity,37 the term

“rebellion” in said proclamation referred to the crime of
rebellion as defined in Article 134 of the Revised Penal
Code. Proclamation No. 427 pertinently reads:
DECLARING A STATE OF REBELLION

“WHEREAS, certain elements of the Armed Forces of the
Philippines, armed with highpowered firearms and explosives,
acting upon the instigation and command and direction of known
and unknown leaders, have seized a building in Makati City, put
bombs in the area, publicly declared withdrawal of support for,
and took arms against the duly constituted Government, and
continue to rise publicly and show open hostility, for the
purpose of removing allegiance to the Government certain
bodies of the Armed Forces of the Philippines and the
Philippine National Police, and depriving the President of
the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of
rebellion punishable under Article 134 of the Revised
Penal Code, as amended; x x x” (Emphasis supplied)
In issuing Proclamation No. 427, President Arroyo relied

on the Revised Penal Code definition of rebellion in
declaring a state of rebellion. In other words, President
Arroyo understood that, for purposes of declaring a state of
rebellion, the term “rebellion” found in the Constitution

refers to the crime of rebellion defined in Article 134 of the
Revised Penal Code.
In exercising the CommanderinChief powers under the
Constitution, every President must insure the existence of
the elements of the crime of rebellion, which are: (1) there
is a (a) public uprising and (b) taking arms against the
Government; and (2) the purpose of the uprising or
movement is either (a) to remove from the allegiance to the
Government or its laws:
_______________
37 Id., at p. 520. The Court stated that “[a] declaration of a state of
rebellion is an utter superfluity. At most, it only gives notice to the nation
that such a state exists and that the armed forces may be called to prevent
or suppress it.”
557
VOL. 668, MARCH 20, 2012 557

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or (b) to
deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives.38
To repeat, the term “rebellion” in Section 18, Article VII
of the Constitution must be understood to have the same
meaning as the crime of rebellion defined in Article 134 of
the Revised Penal Code. Ascribing another meaning to the
term “rebellion” for constitutional law purposes, more
specifically in imposing martial law and suspending the
writ, different from the definition in Article 134 of the
Revised Penal Code, overstretches its definition without
any standards, invites unnecessary confusion, and
undeniably defeats the intention of the Constitution to
restrain the extraordinary CommanderinChief powers of
the President.
Since the term “rebellion” in Section 18, Article VII of
the Constitution pertains to the crime of rebellion as
defined in Article 134 of the Revised Penal Code, the next
question turns on the kind of proof required for a valid
declaration of martial law and suspension of the writ.
While the Constitution expressly provides strict
safeguards against any potential abuse of the President’s
emergency powers, the Constitution does not compel the
President to produce such amount of proof as to unduly
burden and effectively incapacitate her from exercising

such powers.
Definitely, the President need not gather proof beyond
reasonable doubt, which is the standard of proof required
for convicting an accused charged with a criminal offense.
Section 2, Rule 133 of the Rules of Court defines proof
beyond reasonable doubt as follows:
Proof beyond reasonable doubt does not mean such a degree of

proof as, excluding possibility of error, produces absolute
certainty. Moral
_______________
38 See Ladlad v. Velasco, G.R. Nos. 17207072, 1 June 2007, 523 SCRA 318,
336.
558

certainty only is required, or that degree of proof which produces

conviction in an unprejudiced mind.
Proof beyond reasonable doubt is the highest quantum

of evidence, and to require the President to establish the
existence of rebellion or invasion with such amount of proof
before declaring martial law or suspending the writ
amounts to an excessive restriction on “the President’s
power to act as to practically tie her hands and disable her
from effectively protecting the nation against threats to
public safety.”39
Neither clear and convincing evidence, which is
employed in either criminal or civil cases, is indispensable
for a lawful declaration of martial law or suspension of the
writ. This amount of proof likewise unduly restrains the
President in exercising her emergency powers, as it
requires proof greater than preponderance of evidence
although not beyond reasonable doubt.40
Not even preponderance of evidence,41 which is the
degree of proof necessary in civil cases, is demanded for a
lawful declaration of martial law.
_______________
39 Rollo (G.R. No. 190293), p. 512, Brief of Amicus Curiae Father
40 Manalo v. RoldanConfesor, G.R. No. 102358, 19 November 1992,
215 SCRA 808, 819. The Court held therein:
Clear and convincing proof is “x x x more than mere preponderance, but

not to extent of such certainty as is required beyond reasonable doubt as
in criminal cases x x x” while substantial evidence “x x x consists of more
than a mere scintilla of evidence but may be somewhat less than a
preponderance x x x” Consequently, in the hierarchy of evidentiary values,
We find proof beyond reasonable doubt at the highest level, followed by
clear and convincing evidence, preponderance of evidence, and substantial
evidence, in that order. (Citations omitted)
41 Section 1, Rule 133 of the Rules of Court provides:
SECTION 1. Preponderance of evidence, how determined.—In civil
cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the
559
VOL. 668, MARCH 20, 2012 559

By preponderance of evidence is meant that the evidence as a

whole adduced by one side is superior to that of the other. It
refers to the weight, credit and value of the aggregate evidence on
either side and is usually considered to be synonymous with the
term “greater weight of evidence” or “greater weight of the
credible evidence”. It is evidence which is more convincing to the
court as worthy of belief than that which is offered in opposition
thereto.42
Weighing the superiority of the evidence on hand, from

at least two opposing sides, before she can act and impose
martial law or suspend the writ unreasonably curtails the
President’s emergency powers.
Similarly, substantial evidence constitutes an
unnecessary restriction on the President’s use of her
emergency powers. Substantial evidence is the amount of
proof required in administrative or quasijudicial cases, or
that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion.43
_______________
preponderance or superior weight of evidence on the issues involved
lies, the court may consider all the facts and circumstances of the case, the
witnesses’ manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature
of the facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon the trial. The
court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.
42 Raymundo v. Lunaria, G.R. No. 171036, 17 October 2008, 569 SCRA

526.
43 Section 5, Rule 133 of the Rules of Court provides:
SECTION 5. Substantial evidence.—In cases filed before
administrative or quasijudicial bodies, a fact may be deemed established
if it is supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a
conclusion.
560

I am of the view that probable cause of the existence of

either invasion or rebellion suffices and satisfies the
standard of proof for a valid declaration of martial law and
suspension of the writ.
Probable cause is the same amount of proof required for
the filing of a criminal information by the prosecutor and
for the issuance of an arrest warrant by a judge. Probable
cause has been defined as a “set of facts and circumstances
as would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any
offense included therein has been committed by the person
sought to be arrested.”44
“In determining probable cause, the average man weighs

the facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. A finding of
probable cause needs only to rest on evidence showing that, more
likely than not, a crime has been committed and that it was
committed by the accused. Probable cause demands more than
suspicion; it requires less than evidence that would justify
conviction.”45 (Emphasis supplied)
Probable cause, basically premised on common sense, is

the most reasonable, most practical, and most expedient
standard by which the President can fully ascertain the
existence or nonexistence of rebellion, necessary for a
declaration of martial law or suspension of the writ.
Therefore, lacking probable cause of the existence of
rebellion, a declaration of martial law or suspension of the
writ is without any basis and thus, unconstitutional.
The requirement of probable cause for the declaration of
martial law or suspension of the writ is consistent with
Sec
_______________
44 Santos v. Orda, Jr., G.R. No. 189402, 6 May 2010, 620 SCRA 375,
384.
45 Viudez II v. Court of Appeals, G.R. No. 152889, 5 June 2009, 588
SCRA 345, 357.
561
VOL. 668, MARCH 20, 2012 561

tion 18, Article VII of the Constitution. It is only upon the

existence of probable cause that a person can be “judicially
charged” under the last two paragraphs of Section 18,
Article VII, to wit:
“The suspension of the privilege of the writ of habeas corpus

corpus, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.”
(Emphasis supplied)
III.
Whether the declaration of martial law or the suspension of
the writ authorizes warrantless arrests, searches and
seizures.
Section 18, Article VII of the Constitution partially

states:
“A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus
offenses inherent in, or directly connected with, invasion.”
The 1935 and 1973 Constitutions did not contain a similar

provision. Obviously, this new provision in the 1987
Constitution was envisioned by the framers of the
Constitution to serve as an essential safeguard against
potential abuses in the exercise of the President’s
emergency powers.
The Constitution now expressly declares, “A state of

martial law does not suspend the operation of the
Constitution.” Neither does a state of martial law supplant
the functioning of the civil courts or legislative assemblies.
Nor does it au
562

thorize the conferment of jurisdiction on military courts

and agencies over civilians where civil courts are able to
function, or automatically suspend the writ. There is
therefore no dispute that the constitutional guarantees
under the Bill of Rights remain fully operative and
continue to accord the people its mantle of protection
during a state of martial law. In case the writ is also
suspended, the suspension applies only to those judicially
charged for rebellion or offenses directly connected with
invasion.
Considering the nonsuspension of the operation of the
Constitution during a state of martial law, a declaration of
martial law does not authorize warrantless arrests,
searches and seizures, in derogation of Section 2, Article III
of the Constitution, which provides:
“Section 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized.”
Warrantless arrests, search and seizure are valid only in

instances where such acts are justified, i.e., those
enumerated in Section 5, Rule 113 of the Rules of Court.46
_______________
46 Sec. 5. Arrest without warrant; when lawful.—A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or circumstances
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final
563
VOL. 668, MARCH 20, 2012 563

In Pequet v. Tangonan,47 decided during the Martial

Law regime under former President Marcos, the Court
stressed that military personnel, in effecting arrests, must
strictly observe the applicable Rules of Court and settled
jurisprudence, thus:
“Martial law has precisely been provided in both the 1935

Charter and the present Constitution to assure that the State is
not powerless to cope with invasion, insurrection or rebellion or
any imminent danger of its occurrence. When resort to it is
therefore justified, it is precisely in accordance with and not in
defiance of the fundamental law. There is all the more reason
then for the rule of law to be followed. For as was so eloquently
proclaimed in Ex parte Milligan: “The Constitution is a “law for
rulers and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and
under all circumstances.” It is
_______________
judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail and shall
be proceeded against in accordance with section 7 of Rule 112.
In addition, jurisprudence tells us that in the following instances, a warrantless
search and seizure is valid.
(1) search incidental to a lawful arrest,
(2) search of moving vehicles,
(3) seizure in plain view,
(4) customs search, and
(5) waiver by the accused themselves of their right against unreasonable
search and seizure.
See Manalili v. Court of Appeals, 345 Phil. 632, 645646; 280 SCRA 400, 413
(1997), citing People v. Lacerna, 344 Phil. 100; 278 SCRA 561 (1997).
Stopandfrisk is also another exception to the general rule against a search
without a warrant (Posadas v. Court of Appeals, G.R. No. 89139, 2 August 1990,
188 SCRA 288, 292293, cited in Manalili).
47 160 Phil. 906, 909; 66 SCRA 216, 219220 (1975); citations omitted.
564

true, of course, as admitted by Willoughby, who would limit the

scope of martial law power, that the military personnel are called
upon to assist in the maintenance of peace and order and the
enforcement of legal norms. They can therefore act like ordinary
peace officers. In effecting arrests, however, they are not
free to ignore, but are precisely bound by, the applicable
Rules of Court and doctrinal pronouncements.” (Emphasis
supplied)
In Aberca v. Ver,48 the Court emphasized that the

suspension of the writ does not give imprimatur to
warrantless arrests in violation of the Constitution. In that
case, which involved the issue of whether the suspension of
the writ bars a civil action for damages for illegal searches
and for other human rights violations committed by the
military, the Court held:
“At the heart of petitioners’ complaint is Article 32 of the Civil

Code which provides:
xxxx
It is obvious that the purpose of the above codal provision is to
provide a sanction to the deeply cherished rights and freedoms
enshrined in the Constitution. Its message is clear; no man may
seek to violate those sacred rights with impunity. In times of
great upheaval or of social and political stress, when the
temptation is strongest to yield — borrowing the words of Chief
Justice Claudio Teehankee — to the law of force rather than the
force of law, it is necessary to remind ourselves that certain basic
rights and liberties are immutable and cannot be sacrificed to the
transient needs or imperious demands of the ruling power. The
rule of law must prevail, or else liberty will perish. x x x
xxxx
It may be that the respondents, as members of the Armed
Forces of the Philippines, were merely responding to their duty,
as they claim, “to prevent or suppress lawless violence,
insurrection, rebellion and subversion” in accordance with
Proclamation No. 2054 of President Marcos, despite the lifting of
martial law on January 27,
_______________
48 243 Phil. 735; 160 SCRA 590 (1988).
565
VOL. 668, MARCH 20, 2012 565

1981, and in pursuance of such objective, to launch preemptive

strikes against alleged communist terrorist underground houses.
But this cannot be construed as a blanket license or a
roving commission untramelled by any constitutional
restraint, to disregard or transgress upon the rights and
liberties of the individual citizen enshrined in and
protected by the Constitution. The Constitution remains
the supreme law of the land to which all officials, high or
low, civilian or military, owe obedience and allegiance at
all times.
xxxx
This is not to say that military authorities are restrained from
pursuing their assigned task or carrying out their mission with
vigor. We have no quarrel with their duty to protect the Republic
from its enemies, whether of the left or of the right, or from within
or without, seeking to destroy or subvert our democratic
institutions and imperil their very existence. What we are
merely trying to say is that in carrying out this task and
mission, constitutional and legal safeguards must be
observed, otherwise, the very fabric of our faith will start
to unravel. x x x
We do not agree. We find merit in petitioners’ contention that
the suspension of the privilege of the writ of habeas
corpus does not destroy petitioners’ right and cause of
action for damages for illegal arrest and detention and
other violations of their constitutional rights. The
suspension does not render valid an otherwise illegal
arrest or detention. What is suspended is merely the right
of the individual to seek release from detention through
the writ of habeas corpus as a speedy means of obtaining
his liberty.”48 (Emphasis supplied)
IV.
Whether the declaration of martial law or suspension of the
writ is a joint and sequential function of the President and
Congress such that, without Congressional action on the
proclamation or suspension either affirming or revoking it,
the President having in the meantime lifted the same, this
Court has nothing to review.
_______________
49 Id., at pp. 743745, 748749; pp. 600605.
566

Section 18, Article VII of the 1987 Constitution provides:

under martial law. Within fortyeight hours from the
the writ of habeas corpus, the President shall submit a report in
The Congress, if not in session, shall, within twentyfour hours
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
promulgate its decision thereon within thirty days from its filing.”
The Constitution vests exclusively in the President, as

CommanderinChief, the emergency powers to declare
martial law or suspend the writ in cases of rebellion or
invasion, when the public safety requires it. The imposition
of martial law or suspension of the writ takes effect the
moment it is declared by the President. No other act is
needed for the perfection of the declaration of martial law
or the suspension of the writ. As amicus curiae retired
Justice Mendoza states:
“A declaration of martial law by the President alone is

complete by itself and does not require for its validity the
approval or concurrence of Congress. It is a power placed solely in
the keeping of
567
VOL. 668, MARCH 20, 2012 567

the President to enable him to secure the people from harm and
restore the public order so that they can enjoy their freedoms.
Because it is liable to abuse, it is made subject to check by
Congress and/or the [Supreme Court].
The power of Congress is to revoke—not to confirm or ratify,
much less to approve,—the President’s action declaring martial
law or suspending the privilege of the writ of habeas corpus. It is
a veto power, just as the power of the judiciary to review the
President’s action is a veto power on the Executive’s action.”
It is clear, therefore, that the President’s power to

declare martial law or suspend the writ is independent,
separate, and distinct from any constitutionally mandated
act to be performed by either the Legislature or the
Judiciary. It is neither joint nor sequential with Congress’
power to revoke the declaration or suspension or to extend
it upon the initiative of the President. Accordingly, even if
Congress has not acted upon the President’s declaration or
suspension, the Court may review the declaration or
suspension in an appropriate proceeding filed by any
citizen. Otherwise stated, Congress’ inaction on the
declaration or suspension is not determinative of the
Court’s exercise of its review power under Section 18,
Article VII of the Constitution.
To hold that the power of this Court to review the
President’s declaration of martial law or suspension of the
writ is sequential, or joint, with the review power of
Congress is to make it impossible for this Court to decide a
case challenging the declaration or suspension “within
thirty days from its filing,” as mandated by the
Constitution. Congress has no deadline when to revoke the
President’s declaration or suspension. Congress may not
even do anything with the President’s declaration or
suspension and merely allow it to lapse after 60 days. On
the other hand, the Constitution mandates that this Court
“must promulgate its decision thereon within thirty
days from [the] filing” of the case. Clearly, the Court’s
review power is neither sequential nor joint with the
review power of Congress.
568

Moreover, the President’s lifting of the declaration or

suspension before this Court could decide the case within
the 30day period does not operate to divest this Court of
its jurisdiction over the case. A party cannot simply oust
the Court’s jurisdiction, already acquired, by a party’s own
unilateral act. The President’s lifting of the declaration or
suspension merely means that this Court does not have to
decide the case within the 30day period, as the urgency of
deciding has ceased. Certainly, the Court is not divested of
its jurisdiction simply because the urgency of deciding a
case has ceased.
V.
If the constitutional power of this Court to review the
factual basis of the declaration of martial law or suspension
of the writ can be exercised simultaneously with the
constitutional power of Congress to revoke the declaration or
suspension, and the decision of this Court conflicts with the
decision of Congress, which decision shall prevail.
The President has the sole and exclusive power to

declare martial law or suspend the writ. This power of the
President is subject to review separately by Congress and
the Supreme Court. Justice Mendoza stresses, “Thus,
Congress and this Court have separate spheres of
competence. They do not act ‘jointly and sequentially’ but
independently of each other.”50 Father Bernas points out,
“Since the powers of Congress and the Court are
independent of each other, there is nothing to prevent
Congress and the Court from simultaneously exercising
their separate powers.”51
In the exercise by the Court and Congress of their
separate “review powers” under Section 18, Article VII of
the Constitution, three possible scenarios may arise.
_______________
50 Id., at p. 497, Brief of Amicus Curiae Retired Associate Justice
Vicente V. Mendoza.
51 Id., at p. 523, Brief of Amicus Curiae Father Joaquin Bernas, S.J.
569
VOL. 668, MARCH 20, 2012 569

First, the President’s martial law declaration or

suspension of the writ is questioned in the Supreme Court
without Congress acting on the same. Such a situation
generates no conflict between the Supreme Court and

Congress. There is no question that the Supreme Court can
annul such declaration or suspension if it lacks factual
basis. Congress, whose only power under Section 18,
Article VII of the Constitution is to revoke the declaration
or suspension on any ground, is left with nothing to revoke
if the Court has already annulled the declaration or
suspension.
Second, Congress decides first to revoke the martial law
declaration or suspension of the writ. Since the
Constitution does not limit the grounds for congressional
revocation, Congress can revoke the declaration or
suspension for policy reasons, or plainly for being
insignificant, as for instance it involves only one barangay
rebelling, or if it finds no actual rebellion. In this case, the
Supreme Court is left with nothing to act on as the
revocation by Congress takes effect immediately. The
Supreme Court must respect the revocation by Congress
even if the Court believes a rebellion exists because
Congress has the unlimited power to revoke the declaration
or suspension.
Third, the Supreme Court decides first and rules that
there is factual basis for the declaration of martial law or
suspension of the writ. In such a situation, Congress can
still revoke the declaration or suspension as its power
under the Constitution is broader insofar as the declaration
or suspension is concerned. “Congress cannot be prevented
by the Court from revoking the President’s decision
because it is not for the Court to determine what to do with
an existing factual situation. x x x Congress has been given
unlimited power to revoke the President’s decision.”52 In
short, even if there is an actual rebellion, whether affirmed
or not by the Supreme Court,
_______________
52 Id., at p. 524, Brief of Amicus Curiae Father Joaquin Bernas, S.J.
570

Congress has the power to revoke the President’s

declaration or suspension.
In the present controversy, Congress failed to act on
Proclamation No. 1959 when it commenced its Joint
Session on 9 December 2009 until the lifting of the martial
law declaration and restoration of the writ on 12 December

2009. Congress’ nonrevocation of Proclamation No. 1959
categorizes the present case under the first scenario. In
such a situation, where no conflict ensues, Congress’
inaction on Proclamation No. 1959 does not preclude this
Court from ruling on the sufficiency of the factual basis of
the declaration of martial law and suspension of the writ.
VI.
Whether this Court’s determination of the sufficiency of the

factual basis of the declaration of martial law and
suspension of the writ, which in the meantime have been
lifted, would be essential to the resolution of issues
concerning the validity of related acts that the government
committed during the time that martial law and the
suspension of the writ were in force.
Indisputably, unlawful acts may be committed during
martial law or suspension of the writ, not only by the
rebels, but also by government forces who are duty bound
to enforce the declaration or suspension and immediately
put an end to the root cause of the emergency. Various acts
carried out by government forces during martial law or
suspension of the writ in the guise of protecting public
safety may in reality amount to serious abuses of power
and authority. Whatever the Court’s decision will be on the
sufficiency of the factual basis of the President’s
declaration or suspension does not preclude those
aggrieved by such illegal acts from pursuing any course of
legal action available to them. Therefore, the determination
by this Court of the sufficiency of the factual basis of the
declaration or suspension is not essential to the resolution
of issues concerning the validity of related acts that
government forces may have committed during the
emergency.
571
VOL. 668, MARCH 20, 2012 571

VII.
Whether Proclamation No. 1959 has sufficient factual basis.
The full text of Section 18, Article VII of the 1987

Constitution reads:

under martial law. Within fortyeight hours from the
the writ of habeas corpus, the President shall submit a report in
The Congress, if not in session, shall, within twentyfour hours
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ of habeas corpus.
572

The suspension of the privilege of the writ of habeas corpus

corpus, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.”
The CommanderinChief provisions of the 1935 and

1973 Constitutions, on the other hand, respectively state:
Section 10(2), Article VII of the 1935 Constitution

(2) The President shall be commanderinchief of all armed

forces of the Philippines, and, whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion or imminent danger thereof, when the
public safety requires it, he may suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part thereof
under Martial Law.
Section 12, Article IX of the 1973 Constitution
SEC. 12. The Prime Minister shall be commanderinchief of all
armed forces of the Philippines, and, whenever it becomes
suppress lawless violence, invasion, insurrection, or rebellion or
imminent danger thereof, when the public safety requires it, he
may suspend the privilege of the writ of habeas corpus, or place
the Philippines or any part thereof under Martial Law.
Notably, the 1935 and 1973 Constitutions only specify the

instances when martial law may be declared or when the
writ may be suspended.
The 1987 Constitution, on the other hand, not only
explicitly includes the specific grounds for the activation of
such emergency powers, but also imposes express
limitations on the exercise of such powers. Upon the
President’s declaration of martial law or suspension of the
writ, the following safeguards are automatically set into
motion: (1) the duration of martial law or suspension of the
writ is limited to a period not exceeding sixty days; (2) the
President is mandated to submit
573
VOL. 668, MARCH 20, 2012 573

a report to Congress within fortyeight hours from the

declaration or suspension; and (3) the declaration or
suspension is subject to review by Congress, which may
revoke such declaration or suspension. If Congress is not in
session, it shall convene within 24 hours without need for
call.53 In addition, the sufficiency of the factual basis of the
declaration, suspension, or their extension is subject to
review by the Supreme Court in an appropriate proceeding.
The mechanism and limitations laid down in Section 18,
Article VII of the Constitution in declaring martial law or
suspending the writ were introduced precisely to preclude a
repetition of the kind of martial law imposed by President
Marcos, which ushered in a permanent authoritarian

regime. As Father Bernas wrote in his book:
“The CommanderinChief provisions of the 1935 Constitution

had enabled President Ferdinand Marcos to impose authoritarian
rule on the Philippines from 1972 to 1986. Supreme Court
decisions during that period upholding the actions taken by Mr.
Marcos made authoritarian rule part of Philippine constitutional
jurisprudence. The members of the Constitutional Commission,
very much aware of these facts, went about reformulating the
CommanderinChief powers with a view to dismantling what had
been constructed during the authoritarian years. The new
formula included revised grounds for the activation of emergency
powers, the manner of activating them, the scope of the powers,
and review of presidential action.”54
Consistent with the framers’ intent to reformulate the

CommanderinChief powers of the President, the 1987
Constitution requires the concurrence of two conditions in
declaring martial law or suspending the writ, namely, (1)
an actual invasion or rebellion, and (2) public safety
requires the exer
_______________
53 See Senate P.S. Resolution No. 1522.
54 Bernas, The Intent of the 1986 Constitution Writers, 1995 Edition,
p. 456.
574

cise of such power.55 The Constitution no longer allows

imminent danger of rebellion or invasion as a ground for
Constitutions expressly permitted.
In the present case, President Arroyo grounded the
declaration of martial law and suspension of the writ on
the existence of rebellion in Maguindanao. In her Report
submitted to Congress, President Arroyo cited the following
instances as constitutive of rebellion:
1. Local government offices in the province of Maguindanao

were closed and ranking local government officials refused to
discharge their functions, which hindered the investigation and
prosecution team from performing their tasks;
2. The Local Civil Registrar of Maguindanao refused to accept

the registration of the death certificates of the victims purportedly
upon the orders of Andal Ampatuan Sr.;
3. The local judicial system has been crippled by the absence or
nonappearance of judges of local courts, thereby depriving the
government of legal remedies in their prosecutorial
responsibilities (i.e. issuance of warrants of searches, seizure and
arrest). While the Supreme Court has designated an Acting
Presiding Judge from another province, the normal judicial
proceedings could not be carried out in view of threats to their
lives or safety, prompting government to seek a change of venue
of the criminal cases after informations have been filed.
xxxx
Indeed, the nature, quantity and quality of their
weaponry, the movement of heavily armed rebels in
strategic positions, the closure of the Maguindanao
Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay
Municipal Hall, and four
_______________
55 SANLAKAS v. Executive Secretary, supra note 16. See Section 15, Article III
of the 1987 Constitution. In Velasco v. Court of Appeals, 315 Phil. 757; 245 SCRA
677 (1995), the Court declared that the privilege of the writ of habeas corpus
cannot be suspended except in cases of invasion or rebellion when the public safety
requires it.
575
VOL. 668, MARCH 20, 2012 575

teen other municipal halls, and the use of armored

vehicles, tanks and patrol cars with unauthorized
“PNP/Police” markings, all together confirm the existence
of armed public uprising for the political purpose of:
(1) removing allegiance from the national government of
the Province of Maguindanao; and,
(2) depriving the Chief Executive of her powers and
prerogatives to enforce the laws of the land and to
maintain public order and safety.
While the government is at present conducting legitimate
operations to address the ongoing rebellion, public safety
still requires the continued implementation of martial law
and the suspension of the privilege of the writ of ha bea s
corpus in the Province of Maguindanao until the time that
such rebellion is completely quelled.56 (Emphasis supplied)
The question now is whether there was probable cause,

which is the required quantum of proof, to declare the
existence of rebellion justifying the President’s declaration
of martial law and suspension of the writ.
The answer is in the negative.
The contemporaneous public statements made by the
President’s alter egos explaining the grounds for the
issuance of Proclamation No. 1959 negate rather than
establish the existence of an actual rebellion in
Maguindanao.
During the interpellations in the Joint Session of
Congress, convened pursuant to the provisions of Section
18, Article VII of the Constitution, then Executive
Secretary Eduardo Ermita admitted the absence of an
actual rebellion in Maguindanao, to wit:
REP. LAGMAN. Mr. Speaker, Mr. President, a perusal of the

text of Proclamation No. 1959 would show the absence of a clear
and categorical finding or determination that actual rebellion is
occur
_______________
56 Rollo (G.R. No. 190293), pp. 163164, 173177, 182.
576

ring in Maguindanao. Would that be an accurate observation of a

reading of the text of Proclamation No. 1959?
MR. ERMITA. Your Honor, you may be correct that there
was no actual rebellion going on. However, all the indicators
that rebellion is, indeed, being committed and happening on the
ground is because of the presence of the armed groups that
prevent authorities from being able to do its duty of even effecting
the arrest of those who should be arrested in spite of the
testimonies of witnesses.
REP. LAGMAN. Well, we are happy to note that there is
an admission that there was no actual rebellion in
Maguindanao. But the presence of armed groups would be
indicative of lawless violence which is not synonymous to
rebellion. As a matter of fact, the Maguindanao situationer which
was made by Police Director Andres Caro was premised on a
statement that this was the worst electionrelated violence—an
act of gross lawlessness but definitely not related to rebellion.
x x x x57 (Emphasis supplied)
_______________
57 Transcript of Plenary Proceedings, Joint Session of the Congress of
the Republic of the Philippines, 9 December 2009. See also “Ermita: ML
proclaimed without actual rebellion,” The Philippine Star, 11 December
2009 (http://www.philstar.com/Article.aspx?
articleId=531416&publicationSubCategoryId=63 [accessed on 4 November
2011], where the following report appeared:
Executive Secretary Eduardo Ermita admitted Wednesday night
that President Arroyo proclaimed martial law in Maguindanao
without an “actual” rebellion taking place in the province as
required by the Constitution.
But in response to questions raised by Albay Rep. Edcel
Lagman, Ermita pointed to the presence of armed groups
supporting the Ampatuan family that were preventing the
authorities from enforcing the law, which, he added, was
frustrating the ends of justice.
Ermita said the government considered the “presence” or
“massing” of the Ampatuans’ armed followers as “rebellion,” one of
only two grounds under the Constitution, aside from invasion, for
the imposition of martial law.
577
VOL. 668, MARCH 20, 2012 577

Also, during the Joint Session, then Senator (now

President) Benigno S. Aquino III pointed out the public
statements made by former Department of Interior and
Local Government Secretary Ronaldo V. Puno, then Armed
Forces of the Philippines spokesperson Lt. Col. Romeo
Brawner, and former Defense Secretary Norberto Gonzales
admitting there was no need for martial law:
THE SENATE PRESIDENT. With the indulgence of the

Chamber and the Speaker, may we request now to allow the
distinguished Gentleman from Tarlac, Senator Benigno “Noynoy”
Aquino III the floor.
SEN. AQUINO. Thank you, Mr. President. May I direct my first
question to Secretary Puno. And this is to lay the proper predicate
for our first question. The newspaper has been quoting Secretary
Puno as not having recommended the imposition of martial law
prior to its imposition in Maguindanao. May we know if this was a
correct attribution to the Honorable Secretary.
_______________
Ermita though conceded there was no actual rebellion taking place, in
the sense of people taking up arms to withdraw allegiance from the central
government or prevent it from enforcing the law.

Lagman said that Ermita’s answers to his questions and Justice
Secretary Agnes Devanadera’s statement that there was rebellion in
Maguindanao was only “looming” prove that Mrs. Arroyo received “bad
legal advice” in imposing martial rule in the province.
“The President has enough powers under the commanderinchief
provision of the Constitution to quell a ‘looming’ rebellion or neutralize the
‘presence’ or ‘massing’ of armed loyalists of the Ampatuans. She is
authorized to call on the Armed Forces to accomplish that objective,”
Lagman said.
Lagman pointed out the absence of rebellion in Maguindanao as defined
under the Revised Penal Code.
“What happened there was lawlessness. It was just a partisan conflict
that did not require the imposition of martial law,” he said.
578

MR. PUNO. Until, Your Honor, Mr. Speaker, Mr. Senate

President, until the situation developed where police officers went
absent on leave and joined the rebel forces, and a significant
segment of the civilian armed volunteers of the local governments
constituted themselves into a rebel group, until that time I did not
believe that it was necessary that martial law be declared. But
upon receipt of a report from the Armed Forces of the Philippines
and the briefing conducted with the National Security Council,
where it was made clear that a separate rebel armed group had
already been organized, we concurred, Your Honor, with the
recommendation on martial law.
SEN. AQUINO. For the record, Mr. Senate President and Mr.
Speaker, the AFP, we understand, through the spokesperson, Lt.
Col. Romeo Brawner, declared on 13 November 2009 that there is
no need for the declaration of martial law in Maguindanao or
elsewhere in the country because the AFP and PNP are on top of
the situation. He was quoted as saying, and we quote: “We now
have a level of normalcy in the Province of Maguindanao,
primarily because of the occupation by our government forces and
our law enforcement agencies of the seats of government.”
Secretary Norberto Gonzales, who unfortunately is not present,
declared on December 1, 2009 that the government’s effort to
contain the tension in the province is holding ground. We also
have now the admission by the honorable Secretary Puno that
prior to the undated national security briefing, he was also of the
opinion that martial law was not necessary in Maguindanao. x x
x58
Even before the interpellations in Congress, then

Executive Secretary Ermita publicly confirmed the
inadequacies of Proclamation No. 1959:
“We’ll have to get the report from the field from the AFP and
PNP that the conditions that prompted the President to issue the
proclamation, have improved, and therefore, the threat of
further lawlessness and probability of rebellion is already
down.”59 (Emphasis supplied)
_______________
58 Transcript of Plenary Proceedings, Joint Session of the Congress of
the Republic of the Philippines, 9 December 2009.
59 Quoted in the Petition in G.R. No. 190307, p. 15, citing
http://www.abscbnnews.com/nation/12/04/09/arroyoordersmartial
579
VOL. 668, MARCH 20, 2012 579

Significantly, at a press conference, then Secretary of

Justice Agnes Devanadera declared, “We noticed and
observed there was a rebellion in the offing.” In
another press briefing, Devanadera stated that “rebellion
which does not necessarily involve a physical takeover by
armed elements as argued by some critics of the President’s
order, was “looming in Maguindanao.”60 In short, the
Department of Justice Secretary, who is the principal legal
officer of the Arroyo administration, publicly admitted that
there was only a “looming” rebellion, a “rebellion in the
offing,” in Maguindanao.
Likewise, in a press conference, “the AFP Chief of Staff
claimed that armed groups, numbering between 40 to 400
men and spread out in the province, planned to prevent the
arrest of members of the Ampatuan family, the prime
suspects in the Maguindanao massacre. He stated, “Based
on the reports we received, there were a lot of groupings of
armed groups in different places. We also received reports
that they have plans to undertake hostile action if ever
government officials, the Ampatuans particularly, were
taken in custody. We felt this was very imminent
threat, that’s why we recommended this
61
proclamation.”
Then Defense Secretary Norberto Gonzales was quoted
as stating that the “recommendation to declare martial law
in Maguindanao is a sensitive matter that needs to be
studied.”62 In an interview, Gonzales said, “titingnan natin
(we will see) how the situation develops there.”63 He

further stated, “As of
_______________
lawmaguindanao [accessed on 10 November 2011], Arroyo proclaims
martial law in Maguindanao.
60 http://www.philstar.com/Article.aspx?articleid=529869 [accessed on
4 November 2011], DOJ: Rebellion was looming.
61 Mantawil Petition (G.R. No. 190356), pp. 89.
62 http://www.mb.com.ph/node/231907/martiallawideaneed [accessed
on 4 November 2011], Martial law idea needs study — Gonzales.
63 Id.
580

now, I think whatever the government is doing so far is

really effective. We will wait for the results of the work of
Secretary Devanadera of Justice and also Secretary Puno
of DILG. So, so far maganda naman yun takbo ng ating
operation doon.”64 Gonzales added, “Yung tungkol sa
martial law, alam mo sensitive na bagay yan kaya pag
aaralan natin.”65
The admissions and public statements made by
members of the Cabinet, who are the President’s alter egos,
as well as the public assessments made by the highest
ranking military officials, clearly demonstrate that instead
of being anchored on the existence of an actual rebellion,
Proclamation No. 1959 was based on a mere threat, or at
best an imminent threat of rebellion, or a rebellion “in the
offing.”66 This undeniably runs counter to the letter and
intent of the Constitution. A looming rebellion is analogous
to imminent danger of rebellion, which was deliberately
eliminated by the framers of the 1987 Constitution as a
ground for the declaration of martial law precisely to avoid
a repetition of the misguided and oppressive martial law
imposed by former President Marcos.
There is absolutely nothing which shows that the
Ampatuans and their armed followers, at any point in time,
intended to overthrow the government. On the contrary,
the Ampatuans were publicly known as very close political
allies of President Arroyo. There is not a single instance
where the Ampatuans denounced, expressly or impliedly,
the government, or attempted to remove allegiance to the
government or its laws or to deprive the President or
Congress of any of their powers. Based on the records, what

the government clearly established, among others, were (1)
the existence of the Am
_______________
64 Id.
65 Id.
66 http://newsinfo.inquirer.net/breakingnews/nation/view/
20091205240273/Arebellionwasintheoffingjusticechief [accessed on 4
November 2011], ‘A rebellion was in the offing’—justice chief.
581
VOL. 668, MARCH 20, 2012 581

patuans’ private army; and (2) the Ampatuans’ vast

collection of high powered firearms and ammunitions.
These shocking discoveries, however, do not amount to
rebellion as defined in Article 134 of the Revised Penal
Code. Based on the statements made by ranking
government and military officials, and as clearly found by
the RTCQuezon City in Criminal Case No. Q10162667
and affirmed by the Court of Appeals, there was no
public uprising and taking arms against the
government for the purpose of removing from the
allegiance to the government or its laws the territory
of the Philippines or any part thereof, or depriving
the Chief Executive or Congress, wholly or partially,
of any of their powers and prerogatives. The
Ampatuans’ amassing of weaponry, including their
collection of armored cars, tanks and patrol cars, merely
highlights this political clan’s unbelievably excessive power
and influence under the Arroyo administration.
To repeat, only in case of actual invasion or rebellion,
when public safety requires it, may the President declare
martial law or suspend the writ. In declaring martial law
and suspending the writ in Maguindanao in the absence of
an actual rebellion, President Arroyo indisputably violated
the explicit provisions of Section 18, Article VII of the
Constitution.
Conclusion
Thirtyseven years after President Marcos’ Proclamation

No. 1081, President Arroyo issued Proclamation No. 1959
declaring martial law and suspending the privilege of the
writ of habeas corpus in the province of Maguindanao,
except in MILF identified areas. President Marcos’ martial

law, justified to counteract the Communist insurgency in
the country,67 turned out to be a vehicle to establish a one
man authoritar
_______________
67 Proclamation No. 1081 (PROCLAIMING A STATE OF MARTIAL LAW IN THE
PHILIPPINES), 21 September 1972.
582

ian rule in the country. Expectedly, President Arroyo’s

Proclamation No. 1959 refreshed the nation’s bitter
memories of the tyranny during the Martial Law regime of
President Marcos, and sparked the public’s vigilance to
prevent a possible recurrence of that horrible past.
In issuing Proclamation No. 1959, President Arroyo
exercised the most awesome and powerful among her
graduated CommanderinChief powers to suppress a
supposed rebellion in Maguindanao, following the massacre
of 57 civilians in the worst electionrelated violence in the
country’s history. Since then, the government branded the
Ampatuans, the alleged masterminds of the massacre, as
rebels orchestrating the overthrow of the Arroyo
administration. However, the events before, during, and
after the massacre negate the existence of an armed
uprising aimed at bringing down the government, but
rather point to a surfeit of impunity and abuse of power of
a political clan closely allied with the Arroyo
administration. In short, Proclamation No. 1959 was issued
without an actual rebellion justifying the same.
Apparently, President Arroyo resorted to martial law
and suspension of the writ, not to quell a purported
rebellion because there was absolutely none, but to show
her indignation over the gruesome massacre and her swift
response in addressing the difficult situation involving her
close political allies. She was reported to be “under
pressure to deliver, amid rising public outrage and
international condemnation of the massacre.”68 However,
mounting pressure to bring the murderers to justice,
without any invasion or rebellion in Maguindanao, does not
warrant the imposition of martial law or suspension of the
writ. Rather, what the nation expects, and what the
victims and their families truly deserve, is the
_______________
68http://www.time.com/time/world/article/0,8599,1943191,00.html
[accessed on 4 November 2011], Behind the Philippines’ Maguindanao
Massacre, by Alastair McIndoe.
583
VOL. 668, MARCH 20, 2012 583

speedy and credible investigation and prosecution, and

eventually the conviction, of the merciless killers.
In sum, Proclamation No. 1959 was anchored on a non
existent rebellion. Based on the events before, during and
after the Maguindanao massacre, there was obviously no
rebellion justifying the declaration of martial law and
suspension of the writ. The discovery of the Ampatuans’
private army and massive weaponry does not establish an
armed public uprising aimed at overthrowing the
government. Neither do the closure of government offices
and the reluctance of the local government officials and
employees to report for work indicate a rebellion.
The Constitution is clear. Only in case of actual invasion
or rebellion, when public safety requires it, can a state of
martial law be declared or the privilege of the writ of
habeas corpus be suspended. Proclamation No. 1959 cannot
be justified on the basis of a threatened, imminent, or
looming rebellion, which ground was intentionally deleted
by the framers of the 1987 Constitution. Considering the
nonexistence of an actual rebellion in Maguindanao,
Proclamation No. 1959 is unconstitutional for lack of
factual basis as required under Section 18, Article VII of
the Constitution for the declaration of martial law and
suspension of the privilege of the writ of habeas corpus.
Accordingly, I vote to GRANT the petitions and
DECLARE Proclamation No. 1959 UNCONSTITUTIONAL
for failure to comply with Section 18, Article VII of the
Constitution.
DISSENTING OPINION
VELASCO, JR., J.:
The martial law era has left the country with harrowing
memories of a dark past, thus invoking passionate
sentiments from the people and bringing forth remarkable
vigilance as a lesson learned, and only rightfully so.
Nonetheless, legal dis
584

course must be made within bounds, as must always be the

case in a civilized society governed by the rule of law and
not of men. It is on the basis of the foregoing precept that I
am constrained to register my dissent in the instant case.
As can be gathered from the ponencia, the controversy in
the instant case revolves around the issuance by then
President Gloria MacapagalArroyo (President Arroyo) of
Proclamation No. 1959,1 which declared a state of martial
law and suspended the privilege of the writ of habeas
corpus in the province of Maguindanao, except for certain
identified areas of the Moro Islamic Liberation Front.
To recall, the issuance of Proclamation No. 1959 was
precipitated by the chilling and loathsome killing, on
November 23, 2009, of 57 innocent civilians, including the
wife of then Buluan ViceMayor Esmail “Toto”
Mangudadatu (Mangudadatu), who was supposed to file
the latter’s certificate of candidacy for Governor of
Maguindanao with the Provincial Office of the Commission
on Elections in Shariff Aguak, accompanied by
Mangudadatu’s relatives, lawyers and members of the
press, among others. The victims included five others who
only happened to be travelling on the same highway
traversed by the Mangudadatu convoy.
As a consequence of the detestable killings tagged by
media as the “Maguindanao massacre,” President Arroyo
immediately issued Proclamation No. 19462 on the
following day, November 24, 2009, by which a state of
emergency was declared in the provinces of Maguindanao
and Sultan Kudarat, and in the City of Cotabato, “to
prevent and suppress the occurrence of similar other
incidents of lawless violence in Central Mindanao.” This
was followed with the issuance of the assailed
Proclamation No. 1959 on December 4, 2009.
_______________
1 Rollo (G.R. No. 190293), pp. 186187.
2 Id., at p. 185.
585
VOL. 668, MARCH 20, 2012 585

Subsequently, on December 6, 2009, President Arroyo

submitted her Report3 to Congress in compliance with
Section 18, Article VII of the 1987 Constitution.
Meanwhile, the instant petitions were filed challenging
the constitutionality of Proclamation No. 1959.
Also consonant with Sec. 18, Art. VII of the 1987
Constitution, Congress convened in joint session on
December 9, 2009.
Eventually, on December 12, 2009, President Arroyo
lifted martial law and restored the privilege of the writ of
habeas corpus in Maguindanao with the issuance of
Proclamation No. 1963.4
Justiciability of the instant petitions
In the majority opinion, the Court declined to rule on the
constitutionality of Proclamation No. 1959, racionating
that “given the prompt lifting of the proclamation before
Congress could review it and before any serious question
affecting the rights and liberties of Maguindanao’s
inhabitants could arise, the Court deems any review of its
constitutionality the equivalent of beating a dead horse.”
It is my view that, despite the lifting of the martial law
and restoration of the privilege of the writ, the Court must
take the bull by the horn to guide, explain and elucidate to
the executive branch, the legislative branch, the bar, and
more importantly the public on the parameters of a
declaration of martial law.
Indeed, it is a wellsettled rule that this Court may only
adjudicate actual and current controversies.5 This is
because the Court is “not empowered to decide moot
questions or abstract
_______________
3 Id., at pp. 163182.
4 Id., at pp. 190191.
5 Pormento v. Estrada, G.R. No. 191988, August 31, 2010, 629 SCRA
530, 533; citing Honig v. Doe, 484 U.S. 305 (1988).
586

propositions, or to declare principles or rules of law which

cannot affect the result as to the thing in issue in the case
before it.”6 Nonetheless, this “moot and academic” rule
admits of exceptions. As We wrote in David v. Arroyo:
“The “moot and academic” principle is not a magical formula

that can automatically dissuade the courts in resolving a case.
Courts will decide cases, otherwise moot and academic, if:
first, there is a grave violation of the Constitution; second,
the exceptional character of the situation and the
paramount public interest is involved; third, when
constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet
evading review.”7(Emphasis supplied.)
All the aforementioned exceptions are present in this

case. First, in the instant petitions, it was alleged that the
issuance of Proclamation No. 1959 is violative of the
Constitution. Second, it is indubitable that the issues
raised affect the public’s interest as they may have an
unsettling effect on the fundamental rights of the people.
Third, the Court has the duty to formulate controlling
principles concerning issues which involve the declaration
of martial law and suspension of the privilege of the writ of
habeas corpus to guide the bench, the bar, and the public.
And fourth, the assailed proclamation is capable of
repetition yet evading review. Considerably, the instant
petitions are subject to judicial review.
While I disagree with the majority, I wish, however, to
take exception to certain suppositions and discourse made
in the dissent of Justice Carpio. In particular, I refer to his
discussion on hypothetical situations concerning the
simultaneous exercise of the power to review by this Court
and by the Congress, as well as to the proposition that “[i]n
declaring martial law and suspending the writ in
Maguindanao in the absence
_______________
6 Id.
7 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 &
171424, May 3, 2006, 489 SCRA 160.
587
VOL. 668, MARCH 20, 2012 587

of an actual rebellion, President Arroyo indisputably

violated the explicit provisions of Section 18, Article VII of
the Constitution.”
Simulta neous exercise by the Court
a nd the Congress of their constitu
tiona l power to review

One of the matters traversed by the dissent of Justice
Carpio is “[i]f the constitutional power of this Court to
review the factual basis of the declaration of martial law or
suspension of the writ can be exercised simultaneously
with the constitutional power of the Congress to revoke the
declaration of martial law or suspension of the writ, and if
the decision of this Court conflicts with the decision of
Congress, which decision shall prevail[?]”8
In addressing this issue, Justice Carpio, in his dissent,
considered three scenarios, to wit:
“First, the President’s martial law declaration or suspension of

the writ is questioned in the Supreme Court without Congress
acting on the same. Such a situation generates no conflict
between the Supreme Court and Congress. There is no question
that the Supreme Court can annul such declaration or suspension
if it lacks factual basis. Congress, whose only power under Section
18, Article VII of the Constitution is to revoke the initial
declaration or suspension on any ground, is left with nothing to
revoke if the Court has already annulled the declaration.
Second, Congress decides first to revoke the martial law
declaration or suspension of the writ. Since the Constitution does
not limit the grounds for congressional revocation, Congress can
revoke the declaration or suspension for policy reasons, or plainly
for being insignificant, as for instance it involves only one
barangay rebelling, or if it finds no actual rebellion. In this case,
the Supreme Court is left with nothing to act on as the revocation
by Congress takes effect
_______________
8 Rollo (G.R. No. 190293), pp. 192194. Resolution dated December 15, 2009.
588

immediately. The Supreme Court must respect the revocation by

Congress even if the Court believes a rebellion exists because
Congress has the unlimited power to revoke the declaration or
suspension.
Third, the Supreme Court decides first and rules that there is
factual basis for the declaration of martial law or suspension of
the writ. In such a situation, Congress can still revoke the
declaration or suspension as its power under the Constitution is
broader insofar as the declaration or suspension is concerned.
“Congress cannot be prevented by the Court from revoking the
President’s decision because it is not for the Court to determine

what to do with an existing factual situation. x x x Congress has
been given unlimited power to revoke the President’s decision.” In
short, even if there is an actual rebellion, whether affirmed or not
by the Supreme Court, Congress has the power to revoke the
President’s declaration or suspension” (Italics in the original;
citations omitted.)
With the exception of the first, the two other possible

scenarios adverted to that may arise from the action or
inaction of the two coequal branches of the government
upon the declaration by the President of martial law or
suspension of the writ cannot be resolved in the present
case. Otherwise, this Court would, in effect, be making a
ruling on a hypothetical state of facts which the Court is
proscribed from doing.
As We have mentioned in Albay Electric Cooperative,
Inc. v. Santelices, “[i]t is a rule almost unanimously
observed that courts of justice will take cognizance only of
justiciable controversies wherein actual and not merely
hypothetical issues are involved.”9 The reason behind
this requisite is “to prevent the courts through avoidance of
premature adjudication from entangling themselves in
abstract disagreements, and for us to be satisfied that the
case does not present a
_______________
9 G.R. No. 132540, April 16, 2009, 585 SCRA 103, 118119; citing
Jaafar v. Commission on Elections, 364 Phil 322, 327328; 304 SCRA 672,
677678 (1999); emphasis supplied.
589
VOL. 668, MARCH 20, 2012 589

hypothetical injury or a claim contingent upon some event

that has not and indeed may never transpire.”10
Further, the discussions made in Justice Carpio’s
dissent, and curiously, even in the majority opinion itself,
fail to take into consideration the powers of review by this
Court under its expanded jurisdiction as conferred by Sec.
1, Art. VIII of the Constitution, “which includes the
authority to determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been
committed by any branch or instrumentality of the
government.”11
In his dissent, Justice Carpio explicitly declares that

“Congress has the unlimited power to revoke the
declaration or suspension.” Similarly, the majority, in
justifying the Court’s refusal to exercise its judicial power
of review, states that “[o]nly when Congress defaults in its
express duty to defend the Constitution through such
review should the Supreme Court step in as its final
rampart.” Irresistibly implied in these statements is that
once Congress acts and reviews the declaration of martial
law and suspension of the privilege of the writ, this Court
becomes powerless to make further inquiry on the
sufficiency of the factual basis of the proclamation in an
appropriate proceeding filed by any citizen as mandated
under Sec. 18, Art. VII of the Constitution.
The categorical statements made in both the majority
opinion and in Justice Carpio’s dissent minimize, if not
totally disregard, the power of this Court to pass upon the
constitutionality of acts of Congress under its expanded
jurisdiction under the Constitution. The significance of this
Court’s power to review under its “expanded certiorari
jurisdiction” was
_______________
10 Separate Opinion of Justice Nachura in De Castro v. Judicial and
Bar Council, G.R. Nos. 191002, 191032, 191057, A.M. No. 1025SC, G.R.
Nos. 191149, 191342 & 191420, March 17, 2010, 615 SCRA 666, 780;
citing Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540,
570, 858 A. 2d 709 (2004).
11 Coseteng v. Mitra, G.R. No. 86649, July 12, 1990, 187 SCRA 377,
383.
590

extensively discussed in Francisco, Jr. v. Nagmamalasakit

na mga Manananggol ng mga Manggagawang Pilipino,
Inc.:
“As indicated in Angara v. Electoral Commission, judicial

review is indeed an integral component of the delicate system of
checks and balances which, together with the corollary principle
of separation of powers, forms the bedrock of our republican form
of government x x x.
The separation of powers is a fundamental principle in
our system of government. It obtains not through express
provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of

matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers
are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of
each other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in
the workings of the various departments of the
government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to
determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, “x x x judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them.” To him,
“[j]udicial review is the chief, indeed the only, medium of
participation—or instrument of intervention—of the judiciary in
that balancing operation.”
To ensure the potency of the power of judicial review to curb
grave abuse of discretion by “any branch or instrumentalities
of government,” the aforequoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block
letter law the socalled “expanded certiorari jurisdiction” of this
Court x x x.
xxxx
There is indeed a plethora of cases in which this Court
exercised the power of judicial review over congressional action.
Thus, in
591
VOL. 668, MARCH 20, 2012 591

Santiago v. Guingona, Jr., this Court ruled that it is well within

the power and jurisdiction of the Court to inquire whether the
Senate or its officials committed a violation of the Constitution or
grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara, in seeking to nullify an act of
the Philippine Senate on the ground that it contravened the
Constitution, it held that the petition raises a justiciable
controversy and that when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda, this Court declared null and void a

resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as a
member of the House Electoral Tribunal for being violative of
Section 17, Article VI of the Constitution. In Coseteng v. Mitra, it
held that the resolution of whether the House representation in
the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18,
Article VI of the Constitution is subject to judicial review. In Daza
v. Singson, it held that the act of the House of Representatives in
removing the petitioner from the Commission on Appointments is
subject to judicial review. In Tanada v. Cuenco, it held that
although under the Constitution, the legislative power is vested
exclusively in Congress, this does not detract from the power of
the courts to pass upon the constitutionality of acts of Congress.
In Angara v. Electoral Commission, it ruled that confirmation by
the National Assembly of the election of any member, irrespective
of whether his election is contested, is not essential before such
memberelect may discharge the duties and enjoy the privileges of
a member of the National Assembly.
Finally, there exists no constitutional basis for the contention
that the exercise of judicial review over impeachment proceedings
would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and “one section is not
to be allowed to defeat another.” Both are integral components of
the calibrated system of independence and interdependence that
insures that no branch of government act beyond the powers
assigned to it by the Constitution.”12 (Emphasis in the original;
citations omitted.)
_______________
12 G.R. No. 160261, November 10, 2003, 415 SCRA 44, 123124, 132
133.
592

Indeed, the Court does not have the authority to pass

upon the wisdom behind the acts of the Congress.
Nonetheless, the Court is not powerless to review the
legality of the manner by which such acts have been
arrived at in order to determine whether Congress has
transgressed the reasonable bounds of its power.13 This is
an obligation which the Court cannot, and should not,
abdicate.
Moreover, by indicating that Congress, if it so decides to

act, has an unlimited power to revoke the declaration of a
state of martial law or suspension of the privilege of the
writ unfettered by this Court’s power to review, We are
treading on treacherous grounds by handing over such an
unbridled discretion to Congress. Such statement, to me,
partakes of an obiter without precedential value, being
unnecessary to resolve the issues and arrive at a proper
decision in the present case. This matter should instead be
addressed at the proper case and at the proper time.
President Arroyo’s a lleged indisputa ble
viola tion of the explicit provisions of the
Constitution
With due respect to Justice Carpio, I cannot join him in
his contention that “President Arroyo indisputably
violated the explicit provisions of Section 18, Article VII of
the Constitution” for declaring martial law and suspending
the writ in Maguindanao in the absence of an actual
rebellion. The magnification is uncalled for.
When We speak of “violation” in reference to a law, it
pertains to an act of breaking or dishonoring the law.14 The
use of said word, coupled with the ascription of the term
“indisputable,” somehow implies that an act was done
intentionally or
_______________
13 See Coseteng v. Mitra, supra note 11.
14 BLACK’S LAW DICTIONARY (9th ed., 2010).
593
VOL. 668, MARCH 20, 2012 593

wilfully. At worst, its use can even be suggestive of bad

faith on the part of the doer.
In the case at bar, there is neither any allegation nor
proof that President Arroyo acted in bad faith when she
declared martial law and suspended the writ of habeas
corpus in Maguindanao. There was also no showing that
there was a deliberate or intentional attempt on the part of
President Arroyo to break or dishonor the Constitution by
issuing the assailed proclamation. On the contrary, what is
extant from the records is that President Arroyo made such
declaration and suspension on the basis of intelligence
reports that lawless elements have taken up arms and
committed public uprising against the government and the
people of Maguindanao for the purpose of depriving the

Chief Executive of her powers and prerogatives to enforce
the laws of the land and to maintain public order and
safety, to the great damage, prejudice and detriment of the
people in Maguindanao and the nation as a whole.
President Arroyo cannot be blamed for relying upon the
information given to her by the Armed Forces of the
Philippines and the Philippine National Police, considering
that the matter of the supposed armed uprising was within
their realm of competence, and that a state of emergency
has also been declared in Central Mindanao to prevent
lawless violence similar to the “Maguindanao massacre,”
which may be an indication that there is a threat to the
public safety warranting a declaration of martial law or
suspension of the writ.
Certainly, the President cannot be expected to risk being
too late before declaring martial law or suspending the writ
of habeas corpus. The Constitution, as couched, does not
require precision in establishing the fact of rebellion. The
President is called to act as public safety requires.
The following excerpts from the Brief of Amicus Curiae
of Fr. Joaquin Bernas, S.J. is illuminating:
594

“From all these it is submitted that the focus on public safety

adds a nuance to the meaning of rebellion in the Constitution
which is not found in the meaning of the same word in Article 134
of the Penal Code. The concern of the Penal Code, after all, is to
punish acts of the past. But the concern of the Constitution is to
counter threat to public safety both in the present and in the
future arising from present and past acts. Such nuance, it is
submitted, gives to the President a degree of flexibility for
determining whether rebellion constitutionally exists as basis for
martial law even if facts cannot obviously satisfy the
requirements of the Penal Code whose concern is about past acts.
To require that the President must first convince herself that
there can be proof beyond reasonable doubt of the existence of
rebellion as defined in the Penal Code and jurisprudence can
severely restrict the President’s capacity to safeguard public
safety for the present and the future and can defeat the purpose
of the Constitution.
What all these point to are that the twin requirements of
“actual rebellion or invasion” and the demand of public safety are
inseparably entwined. But whether there exists a need to take
action in favour of public safety is a factual issue different in

nature from trying to determine whether rebellion exists. The
need of public safety is an issue whose existence, unlike the
existence of rebellion, is not verifiable through the visual or
tactile sense. Its existence can only be determined through the
application of prudential estimation of what the consequences
might be of existing armed movements. Thus, in deciding whether
the President acted rightly or wrongly in finding that public
safety called for the imposition of martial law, the Court cannot
avoid asking whether the President acted wisely and prudently
and not in grave abuse of discretion amounting to lack or excess of
jurisdiction. Such decision involves the verification of factors not
as easily measurable as the demands of Article 134 of the Penal
Code and can lead to a prudential judgment in favour of the
necessity of imposing martial law to ensure public safety even in
the face of uncertainty whether the Penal Code has been violated.
This is the reason why courts in earlier jurisprudence were
reluctant to override the executive’s judgment.
In sum, since the President should not be bound to search for
proof beyond reasonable doubt of the existence of rebellion and
since deciding whether public safety demands action is a
prudential matter, the function of the President is far from
different from the func
595
VOL. 668, MARCH 20, 2012 595

tion of a judge trying to decide whether to convict a person for

rebellion or not. Put differently, looking for rebellion under the
Penal Code is different from looking for rebellion under the
Constitution.”15
Significantly, the President has the discretion to make a

declaration of martial law or suspension of the writ of
habeas corpus based on information or facts available or
gathered by the President’s office. It would be preposterous
to impose upon the President to be physically present at
the place where a threat to public safety is alleged to exist
as a condition to make such declaration or suspension.
In the present case, it should not escape the attention of
the Court that President Arroyo complied with the
reportorial requirement in Sec. 18, Art. VII of the
Constitution, which states that “within fortyeight hours
from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the
Congress.” Further, it appearing thereafter that when
President Arroyo subsequently received intelligence reports

on the advisability of lifting martial law or restoring the
writ of habeas corpus in Maguindanao, she immediately
issued the corresponding proclamation.
To a certain extent, I conform to Justice Carpio’s dissent
as to the unconstitutionality of Proclamation No. 1959. To
my mind, however, it is one thing to declare a decree issued
by the President as unconstitutional, and it is another to
pronounce that she indisputably violated the
Constitution. Notably, the power to issue the subject decree
is expressly granted the President. There is also
compliance with the report required after the issuance of
said decree. However, the issuance of the subject decree
may not be sustained after due consideration of the
circumstances which may or may not support such decree.
_______________
15 Rollo (G.R. No. 190293), pp. 516518.
596

This dissent fears that overbearing declarations may

later create an unwarranted limitation on the power of a
President to respond to exigencies and requirements of
public safety. We must recognize that as society progresses,
then so may the manner and means of endangering the
very existence of our society develop. This Court is
fortunate for having the benefit of hindsight. This benefit
may not be equally shared by the President, who is tasked
to act with a sense of urgency based on best judgment as
facts develop and events unfold. We may only be judges of
the past. But history will be harsh on a President who is
not up to the challenge and declines, or worse, fails to act
when so required.
I, therefore, vote to declare Proclamation No. 1959
unconstitutional, but as heretofore qualified.
SEPARATE OPINION
PEREZ, J.:
I concur in the resulting dismissal of these petitions,
more than by reason of their mootness but because I find
our action overdue, it being my wellthoughtout position
that the constitutional authority of the Supreme Court to
review the sufficiency of the factual basis of Proclamation
No. 1959 has expired and is no more.
Proclamation No. 1959 declaring martial law and

suspending the privilege of the writ of habeas corpus in the
Province of Maguindanao was issued by then President
Gloria Macapagal Arroyo on 4 December 2009. In
compliance with the mandate of Section 18, Article VII of
the present Constitution, she submitted her Report to
Congress on 6 December 2009 or “within fortyeight hours
from the proclamation.”
Seven petitions, now before the Court, were filed
disputing the constitutionality of the Proclamation. In the
Resolutions of 8 and 15 December 2009, the Court
consolidated the petitions and required the Office of the
Solicitor General to com
597
VOL. 668, MARCH 20, 2012 597

ment on the petitions. By that time, 15 December 2009,

President Arroyo has, on 12 December 2009, already issued
Proclamation No. 1963 lifting martial law and restoring the
privilege of the writ of habeas corpus in Maguindanao.1
The authority of this Court to act on the petitions is
embodied in the third paragraph of Section 18, Article VII
of the 1987 Constitution which states:
“The Supreme Court may review in an appropriate proceeding

the writ or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.”
Clearly, the mandate is both grant and limitation of

authority. For while the Court, upon a proceeding filed by
any citizen, may review the sufficiency of the factual basis
of the proclamation of martial law by the President, or even
its extension by Congress, it can only do so within thirty
days from filing of the proceeding, the period within which
it MUST PROMULGATE its decision.
Over two (2) years have passed since the seven petitions
at bar were filed. Today, unquestionably, the
Constitutional authority granted to the Court to decide the
petitions had lapsed.
It must be made clear that I do not rely, for my position,
on the act of the doer2 “voluntarily ceasing to perform the
challenged conduct” or, precisely, on the lifting of martial
law by Proclamation No. 1963. Indeed, from the time of
lifting on 12 December 2009 up to the thirtieth day

following the filing of the instant petitions, Proclamation
No. 1959 may be reviewed
_______________
1 This and the immediately preceding paragraph were taken from the
ponencia of Justice Antonio T. Carpio.
2 Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, cited
by Justice Antonio T. Carpio, p. 27 of ponencia.
598

for all the reasons mentioned in the ponencia against which

I do not now dissent. The Court did not say during the
permitted time of pronouncement what the majority now
deems needed saying. Thereafter, and today, no opinion as
judgment is constitutionally permissible.
Neither can I join the submission that the question of
constitutionality of Proclamation No. 1959 requires
formulation of controlling principles to guide the Executive,
Legislative and the public.
Respectfully, I submit that each and every exercise by
the President of his commanderinchiefship3 must, if
review by this Court be asked and called for, be examined
under the current events and the present affairs that
determine the presence of the necessity of such exercise.
All the decisions of the actors covered by Section 18 of
Article VII must be done within the tight and narrow time
frames in the provision. These framed periods, I submit,
emphasize the imperative for currency of the decision that
each must make, as indeed, the presidential proclamation,
aside from having been subjected to constitutional checks,
has been given limited life.
The present limitations of the power to declare martial
law, including the consequent circumscription of the
legislative and judicial participation in the exercise of the
power, themselves limit the occasion and need for
“formulation of controlling principles to guide the
Executive, Legislative and the public.” The way and
manner by which the Constitution provided for the
commanderinchief clause require decisions for the
present, not guidelines for the future. I respectfully submit
that the Court cannot now define for the future the
“sufficiency of the factual basis” of the possibly coming

proclamations of martial law. I cannot see how such a pre
determination can prevent an unconstitutional imposition
of
_______________
3 Term used by Bernas, SJ., The 1987 Constitution of the Philippines
and Commentary, 2003 Ed., p. 865.
599
VOL. 668, MARCH 20, 2012 599

martial law better than the requirement, already

constitutionalized, that the President must within forty
eight hours, submit a report in person or in writing to
Congress which can, by a majority of all its members
revoke, the imposition.
WHEREFORE, the cases are declared closed and
terminated by constitutional rescript.
Petitions dismissed for being moot and academic.
Notes.—Section 20, Title I of Book III of Executive

Order 292 speaks of other powers vested in the President
under the law—the exercise of the President’s residual
powers under this provision requires legislation, as the
provision clearly states that the exercise of the President’s
other powers and functions has to be “provided for under
the law.” (Review Center Association of the Philippines vs.
Ermita, 583 SCRA 428 [2009])
The Court finds it wellwithin its power to determine
whether public respondent committed a violation of the
Constitution or gravely abused its discretion in the exercise
of its functions and prerogatives that could translate as
lack or excess of jurisdiction, which would require
corrective measures from the Court. (Gutierrez vs. The
House of Representatives Committee on Justice, 643 SCRA
198 [2011])
——o0o——
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Fortun V Arroyo

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Fortun V Arroyo

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10/29/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 668

G.R. No. 190293. March 20, 2012.*

PHILIP SIGFRID A. FORTUN and ALBERT LEE G.

G.R. No. 190294. March 20, 2012.*

G.R. No. 190301. March 20, 2012.*

VOL. 668, MARCH 20, 2012 505

Fortun vs. Macapagal­Arroyo

PARTMENT OF JUSTICE SECRETARY AGNES VST

G.R. No. 190302. March 20, 2012.*

G.R. No. 190307. March 20, 2012.*

G.R. No. 190356. March 20, 2012.*

506 SUPREME COURT REPORTS ANNOTATED

III, petitioners, vs. THE EXECUTIVE SECRETARY, THE

G.R. No. 190380. March 20, 2012.*

Constitutional Law; Executive Department; Congress; Martial

VOL. 668, MARCH 20, 2012 507

Fortun vs. Macapagal­Arroyo

any need of a call. x x x x Although the above vests in the

508 SUPREME COURT REPORTS ANNOTATED

Fortun vs. Macapagal­Arroyo

a factual basis.—If the Congress procrastinates or altogether fails

VOL. 668, MARCH 20, 2012 509

Fortun vs. Macapagal­Arroyo

file the present petitions assailing the sufficiency of the factual

510 SUPREME COURT REPORTS ANNOTATED

Fortun vs. Macapagal­Arroyo

suspension of the privilege of the writ of habeas corpus, any

VOL. 668, MARCH 20, 2012 511

Fortun vs. Macapagal­Arroyo

included therein has been committed by the person sought to be

512 SUPREME COURT REPORTS ANNOTATED

Fortun vs. Macapagal­Arroyo

declare martial law or suspend the writ. This power of the

the declaration or suspension, which the 1935 and 1973

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Fortun vs. Macapagal­Arroyo

Same; Same; Same; View that only in case of actual invasion

guide, explain and elucidate to the executive branch, the legislative

514 SUPREME COURT REPORTS ANNOTATED

Fortun vs. Macapagal­Arroyo

physically present at the place where a threat to public safety is

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Fortun vs. Macapagal­Arroyo

extent, I conform to Justice Carpio’s dissent as to the

the President of his commander­in­chiefship must, if review by

516 SUPREME COURT REPORTS ANNOTATED

Fortun vs. Macapagal­Arroyo

the presidential proclamation, aside from having been subjected

PETITIONS to challenge the constitutionality of

VOL. 668, MARCH 20, 2012 517

The Fa cts a nd the Ca se

The essential background facts are not in dispute. On

VOL. 668, MARCH 20, 2012 517

and quality of the rebels’ weaponry, the movement of their

VOL. 668, MARCH 20, 2012 519

One. President Arroyo withdrew her proclamation of

invalidate the same. The pertinent provisions of Section 18,

“Sec. 18. The President shall be the Commander in Chief of

Although the above vests in the President the power to

1. The President’s proclamation or suspension is temporary,

520 SUPREME COURT REPORTS ANNOTATED

3. Both houses of Congress, if not in session must jointly

It is evident that under the 1987 Constitution the

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

Fortun vs. MacapagalArroyo

the President of his commanderinchiefship must, if review by

Fortun vs. MacapagalArroyo

LeonardoDe Castro, Brion, Peralta, Bersamin,

In the morning of 23 November 2009, fiftyseven (57)

the Philippines’ worst case of electionrelated violence.